Citation Nr: 1317394	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  10-41 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to service connection for a respiratory disability, including chronic obstructive pulmonary disease, emphysema, and asbestosis, to include as due to exposure to asbestos.

2.  Entitlement to a total rating based on individual unemployability.


ATTORNEY FOR THE BOARD

S. Pflugner, Counsel


INTRODUCTION

The Veteran served in the National Guard from May 11, 1958 to November 10, 1958, and served on active duty from December 30, 1959 to May 1, 1961.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO). 

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

In January 2013, the Board remanded the Veteran's above-captioned claims for additional development and re-adjudication.  The Board directed the RO to issue the Veteran a supplemental statement of the case should any benefit sought on appeal be denied.  Further, the Board requested the RO to provide the Veteran an opportunity to respond to the supplemental statement of the case prior to remitting the claims to the Board.

Following the completion of the directed development, the RO re-adjudicated the Veteran's claims, continuing the denial thereof.  The RO then issued a March 2013 supplemental statement of the case to the Veteran at a Las Cruces, New Mexico address.  After he was afforded an opportunity to respond, his claims were remitted to the Board for further appellate review.

According to an April 2013 Report of Contact, the Veteran moved to a Santa Fe, New Mexico address prior to the issuance of the March 2013 supplemental statement of the case.  This change of address was not correctly updated and, thus, the supplemental statement of the case was not sent to the Santa Fe, New Mexico address.  Consequently, the Veteran did not receive the March 2013 supplemental statement of the case nor was he provided an opportunity to respond thereto.

In the interest of fairness and due process, the Board finds that a remand is required in order for the RO to issue the Veteran a supplemental statement of the case using his updated mailing address and to provide the Veteran an opportunity to respond thereto.  See Stegall v. West, 11 Vet. App. 268, 271 (1998)(holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

The RO must issue the Veteran the March 2013 supplemental statement of the case with respect to the above-captioned claims using his updated mailing address.  After the Veteran has had an adequate opportunity to respond, these claims must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).