Citation Nr: 0007958 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 94-02 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for bronchial asthma. ATTORNEY FOR THE BOARD T. L. Douglas, Associate Counsel INTRODUCTION The veteran served on active duty from July 1981 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1993 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 1997 the Board remanded the case to the RO for additional development. REMAND Review of the record reflects that in accordance with Board remand instructions the RO issued correspondence notifying the veteran that additional evidence was required in support of his claim in June 1998. The Board notes, however, that the notice was sent to an address different than the address provided by the veteran in his June 1994 substantive appeal which is the last correspondence of record from the veteran. A subsequent RO examination request reflects another change of address for the veteran but does not indicate how that information was obtained. The record shows the veteran failed to report for scheduled examinations in October 1998, January 1999, April 1999, and October 1999. As the record does not reflect the RO notified the veteran of the scheduled VA examinations at his last address of record, the Board finds additional development is required. The United States Court of Appeals for Veterans Claims (Court) has held that the burden is upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). 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) (1999). The Court has also held that a veteran must be prepared to meet his obligations by cooperating with VA's efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his claim. Olson v. Principi, 3 Vet. App. 480 (1992). Therefore, the Board finds the veteran should be afforded another opportunity to attend a VA examination, with the understanding that failure to attend the examination without good cause shall result in the denial of his claim for VA benefits. See 38 C.F.R. § 3.655 (1999). Generally, if further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 19.9 (1999). Accordingly, the case is remanded for the following: 1. The RO should make reasonable attempts to determine the veteran's current address and document those attempts. In the event that a new address is found, and it is different from the address on the June 1998 notification, the RO should re-mail the June 1998 notification of the Board remand to the veteran at that new address. If a new address is not found, the RO should re-mail the June 1998 notification of the Board remand to the veteran at his last address of record as provided on the June 1994 substantive appeal. 2. The veteran should be rescheduled for a VA examination to determine the nature and severity of his respiratory disorder. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The examination should include pulmonary function tests and any other tests or studies deemed necessary by the examiner for an accurate assessment. The examiner is requested to provide an assessment of the degree of disability associated with this respiratory disorder. 3. If after adequate notice the veteran fails to report for a scheduled VA examination without good cause, the RO should take appropriate action to deny the claim. See 38 C.F.R. § 3.655 (1999). 4. If an examination is conducted, the RO should review the claims file to ensure that the requested development has been completed in full. If not, the RO should implement corrective procedures. 5. After the action requested has been completed to the extent possible, as well as any other action deemed necessary, the RO should re-adjudicate the issue on appeal. If any benefit sought, for which a timely notice of disagreement was filed, is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until notified by the RO; however, the veteran is advised that failure to cooperate by reporting for examinations may result in the denial of the claim. 38 C.F.R. § 3.655 (1999). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. THOMAS J. DANNAHER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).