Citation Nr: 1607397 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 09-33 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for bilateral patella chondritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to May 1988 and from October 2001 to October 2004. The Veteran also had service with the Army National Guard. This matter initially came before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In July 2011, the Veteran testified before the undersigned by videoconference at a Board hearing, and a transcript of this hearing is of record. In July 2014, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. The appeal is again REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board remanded the claim for a VA examination as to the etiology of the Veteran's bilateral knee disability. The Veteran failed to report for the scheduled examination. A Compensation and Pension exam inquiry containing the December 29, 2014 examination request and instructions appears to indicate that the examination was cancelled due to "undelivered notification," although the AOJ in the March 2015 supplemental statement of the case (SSOC) indicated that the notification was sent to the Veteran and was not returned as undeliverable. A March 2015 report of general information reflects that the author called the Veteran to find out why he did not report to the scheduled examination. The author of the report indicated that she tried to leave a message but the mailbox was set up. In Kyhn v. Shinseki, 24 Vet. App. 228, 237 (2011), the Court indicated that the presumption of regularity applied to notice of VA examinations. However, that decision was vacated on other grounds in Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Given the ambiguities in the notification noted above, the absence of the letter from the VA Medical Center informing the Veteran of the location, date, and time of the examination, and the lack of clear guidance from the courts on this question, the Board finds that a remand to schedule another VA examination is warranted. The letter notifying the Veteran of the location, date, and time of the examination should be included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate his bilateral knee disability. The letter informing the Veteran of the location, date, and time of the examination and the consequences of not reporting to the examination must be associated with the claims file. The claims file, to include any relevant records in Virtual VA or VBMS, should be made available to and be reviewed by the examiner prior to providing an opinion. The examiner should elicit a full history from the Veteran regarding his physical duties in active service and in the Army National Guard. After a full review of the claims file and examination, the examiner should provide an opinion on the following question: Is it at least as likely as not (i.e., is there a 50 percent chance or greater) that the Veteran's bilateral knee disability was due to wear and tear that occurred during Infantry training for 6 years of active duty and/or for approximately two weeks per year for 7 years of National Guard training? In so opining, please accept as true the Veteran's statement that he had arthroscopic surgery on the left knee sometime in 1986 or 1987. See Board Hearing Tr. at 3. Please note that a large majority of the Veteran's records are missing. The lack of records or treatment should not serve as rationale for an opinion. A comprehensive explanation must be provided for the opinion rendered. 2. The Veteran is hereby informed that if he does not appear for the scheduled examination without providing good cause for doing so, his claim will be decided based on the evidence of record without the benefit of the information that would be obtained from the examination. 38 C.F.R. § 3.655(b) (2015). 3. Review the examination report to ensure it is in full compliance with the remand directives. If any questions are not addressed or are inadequately addressed (i.e., a comprehensive rationale was not supplied), obtain addendum opinion(s) as necessary. 4. Thereafter, readjudicate the claim on appeal, considering all pertinent evidence. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a SSOC and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 2014). _________________________________________________ S. C. KREMBS Acting 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) (2015).