Citation Nr: 1324855 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 12-24 359 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable initial evaluation for service-connected pulmonary asbestosis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1956. The Board concludes that a brief recitation of pertinent facts is necessary. In August 2008, the Veteran filed a claim to establish service connection for pulmonary asbestosis. By a September 2009 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, granted the Veteran's claim to establish service connection for this disability; a noncompensable (zero percent) initial evaluation was assigned, effective from August 6, 2008 - the date VA received the Veteran's claim to establish service connection. The Veteran was notified of this rating decision later that month. In December 2009, the Veteran contacted VA, stating that he wished to have his claims file transferred to the VARO in St. Petersburg, Florida, and requested an increased evaluation for his service-connected pulmonary asbestosis. This was accepted as a new claim for an increased evaluation for this disability. However, in May 2010, the Veteran submitted private treatment records which were pertinent to his pulmonary asbestosis claim, yet were not associated with the claims file at the time of the September 2009 rating decision. In light of the Veteran's submission of new and material evidence within one year of the September 2009 rating decision, this determination did not become final with respect to that claim. 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In a June 2010 rating decision, the St. Petersburg RO reconsidered and denied the Veteran's claim for an initial, compensable evaluation for pulmonary asbestosis. The Veteran expressed disagreement with this determination in a timely fashion, and the present appeal ensued. In light of above, the Board concludes that this appeal arises from the June 2010 rating decision and the issue is as stated on the title page. The Board remanded the Veteran's claim for further evidentiary development in November 2012. The Board's remand directives and the subsequent actions by the VA Appeals Management Center (AMC) and RO will be further discussed below. The Veteran's claim has been returned to the Board. As noted by the Board in the November 2012 remand, the issue of entitlement to service connection for depression, claimed as secondary to service-connected disabilities, was raised by the Veteran's representative in an October 2012 Written Brief Presentation. However, because the claim had not been adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ), the Board did not have jurisdiction over it, and it was referred to the AOJ for appropriate action. There is no indication that any action on this issue has been taken since the Board's November 2012 referral. As such, the Board remains without jurisdiction over the claim, and must, again, refer it to the AOJ for appropriate development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the November 2012 remand, the Board directed that the Veteran was to be provided a VA examination to determine the current severity and manifestations of his service-connected pulmonary asbestosis. Thereafter, the Veteran's claim was to be readjudicated in a Supplemental Statement of the Case (SSOC) and returned to the Board if the benefits sought were not granted in full. In December 2012, the AMC scheduled the Veteran for a VA examination to take place at the VA Medical Center (VAMC) in Manchester, New Hampshire. Later that month, the Veteran, being notified of this upcoming VA examination, contacted the Manchester VAMC and conveyed that he was currently in residing in Florida, and would be relocating back to New Hampshire in May 2013. Accordingly, the Manchester VAMC cancelled the December 2012 VA examination. In February 2013, the Veteran submitted a statement in which he reiterated that he was currently residing in Florida and would be returning to New Hampshire in May 2013. In this statement, he also added that he would be returning to Florida in October 2013. In May 2013, the AMC scheduled for a VA examination to take place at the VA VAMC in Manchester, New Hampshire. The VA examination was completed in June 2013, and the report has been associated with the claims file. After the Veteran's claim continued to be denied in a July 2013 SSOC, it was returned to the Board. Despite the Veteran's May 2013 statement that he would be residing in New Hampshire from May 2013 to October 2013, the AMC sent the July 2013 SSOC to his residence in Florida. It does not appear that the Veteran received a copy of the July 2013 SSOC, as the copy sent to his residence in Florida was returned to the Board in July 2013 and is associated with the claims file. One duty of a claimant is to advise VA of his or her current whereabouts. Hyson v. Brown, 5 Vet. App. 262 (1993). As stated in Hyson, there is no burden on the part of VA to turn up heaven and earth to find a claimant, and the duty to assist is satisfied when VA has investigated all possible and plausible addresses in an attempt to locate a claimant at potential known alternate addresses. However, in the present case, it appears that the Veteran did notify VA of his whereabouts, and yet, despite the Veteran's May 2013 statement that he would be residing in New Hampshire from May 2013 to October 2013, the July 2013 SSOC was sent to his residence in Florida rather than New Hampshire. In light of above, the Board's November 2012 remand directives have not been substantially completed, and thus, a remand is necessary. D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998) (the Veteran has right to VA compliance with terms of Board remand order). Specifically, the case must be returned to the AMC to ensure that the Veteran receives written notice of the most recent adjudicatory action (the July 2013 SSOC) pursuant to 38 C.F.R. § 3.103 (2012). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should use all available resources to verify the Veteran's current address. Any attempts to contact the Veteran or verify his address should be memorialized within the Veteran's VA claims file. 2. Thereafter, issue to the Veteran, at his current residence, and his representative a copy of the supplemental statement of the case which was prepared originally by the AMC in July 2013 and was previously mailed to the Veteran at his address in Florida. A copy of this letter, to include a copy of the July 2013 supplemental statement of the case, must also be associated with the claims file. The Veteran and his representative should then be afforded a reasonable period in which to respond, prior to a return of the claims folder to the Board for final review of the appellate issue. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). _________________________________________________ U. R. POWELL 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).