Citation Nr: 1338082 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-05 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service-connection for toxic damage/chemical hypersensitivity. 2. Entitlement to a compensable disability rating for service-connected chronic fatigue syndrome (CFS). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1982 to September 2005. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Original jurisdiction over this case now resides with the RO in Nashville, Tennessee. The case was recently remanded by the Board in February 2011, and has since been returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that additional development is necessary regarding his increased rating claim for CFS and service connection claim for claimed toxic damage/chemical hypersensitivity. 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). In February 2011, the Board requested that the Veteran's claims file be forwarded to an appropriate examiner to perform a records review and determine the nature and etiology of his claimed toxic damage/chemical hypersensitivity. The remand also requested that the Veteran be afforded a VA examination to determine the current severity of his claimed CFS. A review of the record shows that the Veteran failed to report to his scheduled VA examination on March 24, 2011. Importantly, the Board notes that this examination was scheduled at the Southeast Louisiana Veterans Health Care location in the New Orleans area. The Veteran currently lives in Tennessee. 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. In fact, it appears that notice was sent to his previous address in Slidell, Louisiana. It is simply unclear whether the Veteran was properly notified of his VA examination. 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). 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). Based on the evidence showing that notice was likely sent to an old address, 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 toxic damage/chemical hypersensitivity and the current severity of his CFS. 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 should be notified that it is his responsibility to report for VA examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. The Veteran's claims folder, including any pertinent evidence in electronic format, should then be forwarded to and be reviewed by an appropriate examiner for an opinion as to the nature and etiology of his claimed chemical hypersensitivity. After review of the Veteran's service treatment records, post-service treatment records, and the Veteran's own lay statements, the examiner should determine whether the Veteran's claimed chemical hypersensitivity is a symptom of another disorder, or whether it itself is a diagnosed disease entity. If a hypersensitivity disability is diagnosed, the physician should provide an opinion, with supporting rationale, as to whether it is as likely as not that such disability is due to the Veteran's military service, to include his exposure to chemicals in 2001. If there is no diagnosed chemical hypersensitivity disability as such, but rather the hypersensitivity is associated with another disability [either nonservice-connected or service-connected], this should be made clear. If the hypersensitivity is associated with a nonservice-connected disability, to include brain dysfunction, the examiner should provide an opinion, with supporting rationale, as to whether it is as likely as not that any such disability is due to the Veteran's military service, to include his exposure to chemicals in 2001. If the reviewing examiner determines that diagnostic testing or physical examination of the Veteran or a specialist consultation is necessary, such should be scheduled. A report should be prepared and associated with the Veteran's VA claims folder. 4. After obtaining the above-referenced opinion, the RO/AMC should schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and severity of his service-connected CFS. The Veteran's VA claims folder, any pertinent evidence in electronic format, a copy of this REMAND, and a copy of the above-referenced opinion addressing the Veteran's chemical hypersensitivity must be made available to and be reviewed by the examiner. In particular, the examiner should attempt to distinguish symptomatology which is attributable to the Veteran's service-connected CFS, and that which is attributable to any other diagnosed physical or mental disability. If the examiner cannot ascribe particular symptoms to a specific diagnosis, this should be indicated. The examiner should indicate if the Veteran is currently taking continuous medication to treat his CFS. The examiner should also note the duration and frequency of any incapacitating episodes requiring bed rest and treatment by a physician. A report should be prepared and associated with the Veteran's VA claims folder. 5. 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. 6. After undertaking any other development it deems necessary, the RO/AMC should readjudicate the Veteran's increased rating and service-connection claims. If the claims are denied, in whole or in part, the RO should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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 case 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).