Citation Nr: 1341601 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 09-36 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an unspecified lung disorder, to include as due to in-service herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefit sought on appeal. The Veteran then perfected a timely appeal of this issue. In the August 2009 Form 9 perfecting his appeal, the Veteran requested a Central Office hearing in Washington, D.C. However, in a May 2010 written statement, the Veteran withdrew that request and indicated that he instead wanted a Travel Board hearing at the RO in St. Petersburg, Florida. Accordingly, in May 2010, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for the Veteran to be scheduled for his requested hearing. The Travel Board hearing was scheduled for September 2010, and the Veteran was provided notice of the hearing in July 2010. The Veteran failed to appear for the proceeding and has not provided an explanation for his absence or requested to reschedule the hearing. Accordingly, the Board considers that his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2013). In March 2011, the Board reopened the Veteran's previously denied claim of entitlement to service connection for an unspecified lung disorder. The Board then remanded the service connection issue to the RO via the AMC in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Veteran's paperless claims files were also reviewed and considered in preparing this remand, along with his paper claims file. The appeal is again REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. This claim was recently remanded in March 2011 for VA Medical Center (VAMC) treatment records and for a VA examination and medical opinion. Regarding the records, the May 2012 Supplemental Statement of the Case (SSOC) lists VA treatment records dated since October 1993 in the evidence of record; however, upon remand, only VAMC treatment records dated since April 2008 were added to the Veteran's paper and paperless claims files. In its remand, the Board directed the AMC to obtain the Veteran's VAMC treatment records dated since October 1993. To date, this action has not been accomplished. In its remand, the Board also instructed the AMC to provide the Veteran with a VA examination. A VA examination was scheduled in April 2011, and the Veteran was notified of the examination that same month. The Veteran failed to report for the scheduled examination. In the November 2013 Informal Hearing Presentation (IHP), the Veteran's representative argued that the Veteran was unable to attend the scheduled examination due to no fault of his own and/or good cause shown. The representative did not elaborate. However, the Board notes that the address on file with the VAMC is the Veteran's old address. As evidenced in the claims file, mail sent to this address, to include the May 2012 SSOC, was returned to VA. However, mail sent to the Veteran's new address, to include a January 2013 letter, was not returned to VA. Thus, the Board finds that the Veteran was not provided proper notice of the scheduled VA examination at his current mailing address. Accordingly, the claim must again be remanded for the VAMC treatment records and the VA examination to be obtained. See Stegall, 11 Vet. App. at 271 (1998) (noting that where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate any VA outpatient treatment reports dated from October 1993 to the present that are not currently of record. The records should specifically include treatment for the lung in October 1993. If no records can be obtained, a written statement should be included in the claims file. 2. Schedule the Veteran for a VA examination for his lung disorder. Properly notify the Veteran of the examination by sending notice of the details of the examination to the Veteran at his correct address ([redacted]). Send the notice with sufficient time in advance to allow the Veteran to attend the examination. The examiner should review the claims file and note that review in the report. Any and all indicated evaluations, studies, and tests should be accomplished. X-rays of the chest should be obtained. The examiner is requested to obtain a detailed history of the Veteran's symptoms, review the record, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any lung disorder, to include upper respiratory infection and bronchitis, is related to the Veteran's active military service, to include in-service exposure to herbicides. A complete rationale for the opinion should be provided. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND at whatever location it is scheduled and to cooperate in the development of his case. The consequences of failure to report for the VA examination may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 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 2002 & Supp. 2013). _________________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).