Citation Nr: 21013323 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-13 617 DATE: March 9, 2021 REMANDED Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from July 6, 1989 to August 25, 1989 and had additional National Guard and reserve service until May 20, 1992. This appeal to the Board of Veterans’ Appeals (Board) is from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in January 2019 for further development. Still more development is required, however, so the Board is again remanding this claim. Entitlement to service connection for asthma is again remanded. The Veteran contends that he is entitled to service connection for breathing problems – including especially owing to asthma, because this impairment is related or attributable to his military service.   The Board’s prior January 2019 remand was to further develop this claim, including specifically by providing the Veteran a VA examination for a needed medical opinion concerning the nature and etiology of any respiratory disorder confirmed to exist, especially insofar as whether related or attributable to his service, particularly any chemical exposures in service. On October 24, 2019, to this end, the RO submitted a request for a VA examination and on November 5, 2019, a notice that the examination was canceled due to “no show” was issued. In July 2020, the AOJ then issued a supplemental statement of the case (SSOC) indicating the Veteran had failed – without good cause, to report for his VA examination that was scheduled for October 31, 2019. However, there is no indication in the record on appeal that he was, in fact, duly notified either in writing or by telephone of the date, time and location of that scheduled examination. Prior to May 2013, the U. S. Court of Appeals for Veterans Claims (Veterans 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, as an example, of a scheduled VA examination. This presumption of administrative regularity could be rebutted by clear evidence to the contrary. The Court also had 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 that appeal was pending, the higher Federal Circuit Court issued Kyhn v. Shinseki, 2013 WL 1846562 (C.A. Fed., May 3, 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. The lower Court (CAVC) had allowed VA to submit an affidavit of a manager from the VA Medical Center (VAMC) involved establishing the regular practice of mailing such notices. But the Federal Circuit Court held the CAVC could not consider such evidence because judicial notice does not extend to affidavits from "a party's employees regarding otherwise unknown internal procedures." (slip op. at 7). The Federal Circuit Court went on in Kyhn to further hold that the CAVC had done impermissible fact-finding in the first instance.   The Federal Circuit Court essentially drew a distinction between "instances where the presumption of regularity was premised upon independent legal authority" and instance where it was based upon "evidentiary findings." (slip op. at 10). Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, nonreceipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q). Moreover, this presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). But this presumption also as mentioned is rebuttable, notably as an example when there is clear evidence of non-delivery (as confirmed by the U.S. Postal Service returning the mail as undeliverable) and if there is another address on file at which the appellant perhaps could be located. Having said all of that, the Board is mindful of the provisions 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. See 38 C.F.R. § 3.655(a), (b). In the service-connection context, this requires deciding the claim based on the existing evidence of record. Here, though, it is unclear whether an examination was in fact scheduled for the Veteran and, if so, whether he was properly notified of it. Although the November 5, 2019 notification indicates the Veteran was a "no show" for his examination, which implies it was scheduled, the record is lacking documentation that he was notified of the appointment date, time and location. It is unclear to the Board whether an examination was, in fact, scheduled. Even assuming that he was sent the appropriate notification of the date, time and location of the scheduled VA examination, the record is unclear as to whether notification was sent to his correct address. Concerning this, the Board sees that he appears to have changed addresses during the pendency of this appeal. As such, the Board finds that, in the interests of due process and fairness, the Veteran should be provided an additional opportunity to undergo a VA examination in connection with his appeal. The AOJ (RO) should undertake all appropriate measures to verify his current address and ensure that notice of the scheduled appointment is sent to him and his representative at the correct address. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory disorder determined to be present. For each disorder confirmed to exist, have the examiner opinion on whether it is at least as likely as not (50 percent or more probable) related or attributable to the Veteran’s active service, to include especially any exposures to chemical or other toxins during his service. To assist in making this important determination, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history.   When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.