Citation Nr: 1337908 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-08 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a chronic respiratory disorder, claimed as chronic bronchiectasis and restrictive airway disease. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran had active military service from June 1984 to June 1987. The appeal comes before the Board of Veterans Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran's claim was remanded in May 2013 for further development. The case has since been returned to the Board for adjudication. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that additional development is necessary regarding his respiratory disorder. For reasons explained immediately below, a remand is necessary for further evidentiary development, and to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the May 2013 remand, the Veteran was scheduled for a VA examination for his respiratory disability in August 2013. The Board specifically directed that if the Veteran did not appear for the scheduled examination, the RO/AMC must show that notice of the examination was sent to the Veteran's last known address or indicate whether any notice was returned as undeliverable. A notation in the record indicates that the Veteran failed to report for this examination. The Board finds that it is unclear whether the Veteran received notice of his examination date and time, as well as the consequences for failure to appear without good cause. Although there is a copy of the examination inquiry in the claims file, there is not a copy of the examination notice that was sent to the Veteran. The examination inquiry shows a notation that the Veteran's address/phone provided by BVA differs from the VHA database, and the last known date that the Veteran resided at this address was in May 2013. It is simply unclear whether the Veteran was properly notified. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010) which involved the presumption of regularity in notification of VA examinations.) Moreover, the evidence does not show any attempts by the VAMC or the AMC to secure the Veteran's current phone number and address, nor is there evidence that the examination notice was returned to sender. The Board is aware of 38 C.F.R. § 3.655 regarding action to be taken when a Veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination. 38 C.F.R. §§ 3.655(a), (b). However, based on the above and in consideration of Kyhn, the Board finds that the Veteran should be afforded another opportunity to appear for a VA examination to determine the nature and etiology of any current respiratory disorder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to confirm the Veteran's current contact information, to include confirming any necessary updates to VA databases. All attempts to confirm this information should be properly documented in the claims file. 2. The Veteran is to be notified that it is his responsibility to report for VA examinations and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). The Veteran's representative (currently Texas Veterans Commission), should be sent copies of all documents that are sent to the Veteran. 3. Then, schedule the Veteran for an examination to ascertain the nature and etiology of any current respiratory disorder, including an assessment as to whether any current respiratory disorder is etiologically related to service. The claims file, including any pertinent evidence in electronic format, must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should indicate that he/she has reviewed the claims file. The examiner should provide a diagnosis of any currently manifested respiratory disorder(s). For each disorder identified, the examiner should indicate: a) Whether the disorder clearly and unmistakably existed prior to the Veteran's entrance onto active duty. If the examiner determines the Veteran had a pre-existing disorder, the examiner should specifically provide a rationale for that opinion. b) For each disorder that clearly and unmistakably existed prior to service, the examiner should proffer an opinion as to whether the disorder clearly and unmistakably DID NOT increase in severity beyond the natural progression of the disorder during active duty. c) For any respiratory disorder that did not clearly and unmistakably exist prior to active duty and was not aggravated by active duty, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is related to his military service, to include any respiratory treatment or complaints during service. Any diagnosis must be based on examination findings, all available medical records, and any special testing (including a PFT) deemed appropriate. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed respiratory disorder as shown by the evidence of record. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. 4. In the event that the Veteran does not report for the scheduled examination, documentation should be included showing that attempts were made to notify the Veteran at his last known address of the date and time for his VA examination. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 5. Readjudicate the Veteran's claim, to include consideration of any additional evidence obtained as a result of this remand. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters 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). _________________________________________________ DAVID L. WIGHT 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).