Citation Nr: 1036151 Decision Date: 09/24/10 Archive Date: 09/30/10 DOCKET NO. 09-02 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. ATTORNEY FOR THE BOARD K. Osegueda, Law Clerk INTRODUCTION The Veteran served on active duty from July 1956 to November 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a mental disorder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has a current psychiatric disorder related to his military service. In February 2008, the National Personnel Records Center (NPRC) advised the Board that the Veteran's service personnel and service treatment records were unavailable as they were destroyed by fire. In such cases, there is a heightened duty to assist the Veteran in developing evidence that might support his claim. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In an October 1956 report of medical evaluation, the Veteran was diagnosed with "Emotional Instability Reaction" and the examining physician opined that it was probable that this condition would continue and that the individual could not be rehabilitated for further military duty. In an October 1956 discharge request, the reason for recommended discharge was "immaturity reactions involving emotional instability." The Veteran was discharged from service in November 1956. Following service, the Veteran indicated in a February 2009 VA Form 21-4142, an authorization and consent to release information, that his first treatment for his psychiatric disorder was in May 2007. Correspondence dated April 2008 from the mental health coordinator, B. I., at a correctional facility reported the Veteran was treated in biweekly therapy sessions beginning in May 2007. Mr. I., a licensed clinical social worker, opined that the Veteran had a long history of untreated Bipolar I Disorder and that the stress of entering boot camp in July 1956 caused him to exhibit symptoms of Bipolar I Disorder. The RO appropriately requested treatment records from Mr. I. at the Cimarron Correctional Facility in March 2009; however, also in March 2009, Mr. I responded that the Veteran and his medical chart were no longer at Cimarron. Mr. I provided the name of the new facility, address, and point of contact information for the Health Services Administrator. The RO subsequently notified the Veteran that he needed to complete and return an enclosed VA Form 21-4142 so they could obtain the Veteran's treatment records from his current facility. There is no evidence in the record of an authorization and consent to release these records from the Veteran; thus, no request for treatment records was made by the RO. The Board notes that the Veteran has not been afforded a VA examination in connection with his claim. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service- connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Here, the Veteran's discharge records indicate that the Veteran was diagnosed with "Emotional Instability Reaction" in service, and he has been diagnosed with bipolar disorder which a social worker has attributed to service. Because there is insufficient medical evidence to a make a decision on the claim, a VA examination is warranted. Ongoing medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002). The evidence of record indicates that the Veteran is incarcerated in a state correctional facility. The duty to assist incarcerated Veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement; as such individuals are entitled to the same care and consideration given to their fellow veterans. See 38 U.S.C.A. § 5107(a) (West 2002); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995); Hager, J., "VA's Duty to Assist Incarcerated Veterans," 1 Vet. L. Rev. 231 (2009). While VA does not have the authority under 38 U.S.C.A. § 5711 (West 2002) to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility, VA's duty to assist an incarcerated Veteran extends to arranging for adequate evaluation within the prison facility, or if unable to do so, having him examined by a fee- basis physician or requiring a VA physician to examine him. See Bolton, 8 Vet. App. at 191. The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated Veterans. The manual calls for the AOJ or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. See M21- 1MR, Part III.iv.3.A.11.d (2009). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers that treated the Veteran for a psychiatric disorder prior to service, of following his separation from service. The AMC/RO should request that the Veteran sign and return the appropriate releases. After the Veteran has signed the appropriate releases, see 38 C.F.R. § 3.159(c)(1)(ii) (claimant must authorize the release of existing records), those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After all outstanding pertinent records have been obtained and associated with the claims file or determined to be unavailable, the AMC/RO is to contact the facility at which the Veteran is incarcerated to determine whether the facility will allow the Veteran to leave the facility, with escorts, to be examined by a VA provider. If not, the AMC/RO should determine whether the facility will allow a VA provider to be sent to the prison to examine the Veteran, or inquire whether a qualified medical professional from the prison may conduct the examination. All such efforts should be documented in the claims file. If feasible, the Veteran should be scheduled for an appropriate psychiatric examination to evaluate the current nature of his mental disorder and the etiology of any current mental disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examination must be conducted following the protocol in VA's Worksheet for Mental Disorders Examination. Additionally, based on a review of the claims folder, evaluation of the Veteran's mental state, and by applying sound medical principles, the examiner is to opine whether it is at least as likely as not that any current mental disorder is the result of the Veteran's service. A defensible rationale is to be provided with the opinion. If the examiner opines that the question cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so (why is the causation unknowable?), must be provided. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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 Supp. 2010). ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009). Department of Veterans Affairs