Citation Nr: 19185444 Decision Date: 11/13/19 Archive Date: 11/13/19 DOCKET NO. 14-24 070 DATE: November 13, 2019 REMANDED Entitlement to a rating in excess of 20 percent for service-connected residuals, bilateral jaw fracture, is remanded. REASONS FOR REMAND The Veteran had active military service from May 1974 to September 1976 and from March 1980 to March 1982, and has additional service in the Reserves and National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2017, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. The claim was remanded by the Board in June 2018; pursuant to the remand the Veteran was provided an additional VA exam. In November 2018, the RO increased the Veteran’s service-connected residuals, bilateral jaw fracture from 10 percent to 20 percent effective for the entire appeal period. The case returned to the Board at which time in February 2019 the Board again remanded the claim for re-examination. The Veteran failed to appear for the exam and the case returned to the Board. As will be discussed below, unfortunately another remand is warranted. 1. Entitlement to rating in excess of 20 percent for service-connected residuals, bilateral jaw fracture, is remanded. 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. § 5103A (a); 38 C.F.R. § 3.159 (c), (d). As noted, the Board remanded the claim in February 2019, 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). On April 12, 2019, the RO received notice that the Veteran was a “no show” to his scheduled VA Exam. The RO 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 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 RO consequently readjudicated the claim based on the existing evidence of record, and, in a June 2019 Supplemental Statement of the Case (SSOC), continued to deny a rating in excess of 20 percent for service-connected residuals, bilateral jaw fracture, 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, the higher Federal Circuit Court later 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. Indeed, the Veteran’s claim file reflects some confusion as to the Veteran's correct address, and on several occasions, documents and correspondence have been returned to the Board as undeliverable. See Returned Copy of February 2019 BVA Decision (reflecting an address on "Lincoln Street"). See also Returned Copy of February 2019 eBenefits Letter. Thus, it appears that the Veteran’s address was outdated in the VA system. The Veteran’s current address has since been corrected in his claims file. However, because there is no notice of record notifying the Veteran of his exam reflecting the correct address, the Board cannot verify that the Veteran was ever notified that he had been scheduled for a new exam pursuant to the February 2019 Board Remand directives. 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, as noted in the February 2019 Board Remand, the Veteran’s previous examinations failed to test the Veteran’s service-connected residuals, bilateral jaw fracture for active motion, passive motion, in weight-bearing and without weight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the Veteran’s previous examinations failed to account for additional functional loss during flare-ups of a musculoskeletal disability. See September 2018 DBQ, see also Sharp, 29 Vet. App. at 32, 34-35 (citing DeLuca, 8 Vet. App. at 206-207 and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Thus, the Board finds that the Veteran must be scheduled for a new examination that complies with the directives of the February 2019 Board Remand, and he must be given the required notice of it. Because it is unclear whether recent communications and documents have, in fact, been sent to the correct address, on remand, the RO should verify the Veteran's current address. The matters are 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. Obtain the Veteran’s VA treatment records for the period from August 2018 to the present. 3. Thereafter, schedule the Veteran for an examination of the current severity of his service-connected residuals, bilateral jaw fracture. 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. The examiner must test the Veteran’s active motion, passive motion, in weight-bearing and without weight-bearing. If the examiner is unable to conduct one or more of these tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or non-weight-bearing), must be specified. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected residuals, bilateral jaw fracture alone and discuss the effect of such on any occupational functioning and activities of daily living. In the event that the Veteran does not report for any scheduled examination(s), a copy of the letter notifying the Veteran of the date, time, and location of the examination(s) should be associated with the file. (Continued on the next page)   4. Following completion of the above directive, review the claims file to ensure compliance with this remand, as well as the February 2019 Board 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 5. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim for entitlement to a rating in excess of 20 percent for service-connected residuals, bilateral jaw fracture. 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. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.