Citation Nr: 1511545 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 09-09 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable disability rating for methicillin-resistant staphylococcus aureus (MRSA) with recurrent furunculitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to May 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in December 2012, at which time it was remanded for further development. Unfortunately, for the reasons stated below, yet another remand is warranted. In its December 2012 remand, the Board referred claims of entitlement to service connection for gastroesophageal reflux disease and hypertension to the Agency of Original Jurisdiction (AOJ). See November 2012 Written Brief (asserting that service connection is warranted for these additional disabilities). However, because there is no indication that the AOJ has, as yet, considered these additional claims, the Board is again referring them for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets the further delay that inevitably will result from again remanding, rather than immediately deciding, this claim, it is necessary to ensure the claim is fully developed and receives all due consideration. 38 U.S.C.A. § 5103A(a) (West 2014); 38 C.F.R. § 3.159(c), (d) (2014). As noted, the Board remanded the claim in December 2012, primarily so that the Veteran could be afforded an additional VA examination. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Appeals Management Center (AMC) undertook the requested additional development of these claims, and, pursuant to the Board's remand instructions, scheduled the Veteran for a VA examination concerning this claim in February 2013. See 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014). An examination detail report dated February 13, 2013 reflects that the Veteran "FAILED TO REPORT" for the examination scheduled on that date. The AMC thus determined that he failed to appear for this scheduled VA examination, and that he failed to call either the VA Medical Center (VAMC) where it was to be held or the RO/AMC to cancel his examination or provide justifiable reason or explanation (i.e., the required good cause) for his failure to report. See 38 C.F.R. § 3.655. The AMC consequently readjudicated the claim based on the existing evidence of record, and, in a February 2013 Supplemental Statement of the Case (SSOC), continued to deny a compensable rating for the Veteran's MRSA, specifically noting his failure to appear for the scheduled examination. See 38 C.F.R. § 3.655(b); see also Turk v. Peake, 21 Vet. App. 565 (2008). In this regard, the Board notes that until recently, the United States Court of Appeals for Veterans Claims (Court/CAVC) had held that VA was entitled to the presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran of a scheduled VA examination. This presumption of administrative regularity could be rebutted by clear evidence to the contrary. The Court also held that the absence of a copy of the notice letter in the claims file did not constitute clear evidence to rebut this presumption of administrative regularity. See Kyhn v. Shinseki, 24 Vet. App. 228, at 236 (2011) (Kyhn II). However, while this appeal was pending, the higher Federal Circuit Court issued Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). In Kyhn the Federal Circuit Court vacated the lower Court's Kyhn II decision, holding that the Court had relied upon extra-record evidence to make a finding of fact in the first instance in striking down the lower Court's application of the presumption of administrative regularity in a case in which notification of an upcoming VA examination was not explicitly of record. Id.; but see Baxter v. Principi, 17 Vet. App. 407 (2004) (holding that that the Board need not examine whether the presumption of regularity has been rebutted unless and until the Veteran, at a minimum, alleges that he did not receive the document in question). In the instant case, the record does not contain any letter or other document reflecting that the Veteran was properly notified of this scheduled examination. Rather, the only pertinent communication of record from VA to the Veteran during that time period is a notification letter from the AMC to the Veteran requesting additional private treatment records. Rather, in January 2013, the RO sent the Veteran a letter notifying him that arrangements were being made for his VA skin examination, and that he would be informed at a later date of the time and place of the examination. See January 2013 Notification Letter to Veteran; February 2013 Compensation and Pension Examination Inquiry. No further communication indicating the time and place of the examination is of record, however. The examination subsequently was scheduled for February 13, 2013, but never occurred because, as mentioned, he did not report for it. Thus, in light of the Federal Circuit Court's ruling in Kyhn and the absence of verification that the Veteran received proper notice of his scheduled VA examination, another examination must be rescheduled and he must be provided the required notice of it. Such an examination is particularly important because none of the previous VA examinations, dated in October 2007, January 2009, and March 2010, were administered during an active outbreak of the Veteran's service-connected skin disability. In this regard, because his condition undergoes periods of remission and recurrence, VA is required to attempt to provide a medical examination during the period of recurrence in order to provide a proper disability rating. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (concluding that an examination during a remission phase was inadequate because it did not "accurately reflect the elements of the present disability"). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505 -06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See, too, Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). Moreover, the Board notes that the claims file reflects some confusion as to the Veteran's correct address, and on at least one occasion, documents and correspondence have been returned to the Board as undeliverable. See Returned Copy of August 2010 SSOC (reflecting an address on "Old Bridge Street"). See also 38 C.F.R. §§ 19.31, 19.30 (2014) (indicating that, when an SSOC is issued, it is to be furnished to the Veteran at his last address of record). Additionally, the February 2013 Compensation and Pension Examination Inquiry notes that there are multiple addresses of record for the Veteran and requests that his address be verified for accuracy before mailing an examination notification. See January 2013 Notification Letter to Veteran (sent to an address on "Whispering Winds Lane"); February 2013 Compensation and Pension Examination Inquiry (reflecting addresses on "Whispering Winds Lane" and "Whispering Ct."); February 2013 SSOC (sent to an address on "Whispering Ct."). There is, however, no indication in the file that any such verification occurred. Therefore, because it is unclear whether recent communications and documents have, in fact, been sent to the correct address, on remand, the AOJ should verify the Veteran's current address. Accordingly, the case is REMANDED for the following action: 1. Take the necessary steps to verify the Veteran's current mailing address. Verification efforts must be documented, and such documentation associated with the claims file. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected MRSA with recurrent furunculitis. A copy of the letter notifying the Veteran of the date, time, and location of the examination should be associated with the claims folder. The examination should be conducted during an exacerbation or active phase of the condition if possible in coordination with the Veteran, to accurately determine the current severity of his skin condition. If the Veteran has a period of exacerbation of the disability before the VA examination can be scheduled, or if the examination cannot be scheduled in conjunction with an exacerbation, he should be advised of alternative ways to present evidence of the severity of his service-connected skin condition, i.e., photographs. Efforts to schedule the Veteran for an examination during an active period of his recurrent staph infection must be documented, and such documentation associated with the claims file. The claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report should indicate that this has been accomplished. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including specifically the size and location of any affected areas, identification and description of any related scarring, the types of therapy and treatment required, and any functional impairment caused. The examiner should provide a complete rationale for all conclusions. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination reports do not include adequate responses to the specific opinions requested, they must be returned to the examiner(s) for corrective action. 4. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim for an initial compensable rating for MRSA with recurrent furunculitis. If such action does not grant in full the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or 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 2014). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).