Citation Nr: 1107882 Decision Date: 02/28/11 Archive Date: 03/09/11 DOCKET NO. 04-07 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied the Veteran service connection for PTSD. A subsequent July 2003 rating decision granted the Veteran service connection for PTSD, assigning a 50 percent rating effective March 14, 2003. In March 2006, the Board remanded the Veteran's claim for additional development. The appeal is again 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 seeks an initial evaluation in excess of 50 percent for PTSD. In March 2006 the Board remanded the Veteran's current claim so that could be scheduled for a VA examination to assess the current severity of his PTSD disability. In April 2006 the AMC notified the Veteran that he would be scheduled for a VA examination at a VA Medical Center (VAMC). An April 2006 document from the AMC notes that the Veteran is incarcerated and arrangements need to be made to have the confinement facility schedule an examination. It does not appear that any such attempts to make necessary arrangements were made by the AMC or RO. In a July 2008 letter to the AMC the Veteran notified them that he was still a prisoner at a federal prison facility in Seagoville, Texas, and that there is an excellent psychology staff at the prison and that VA psychology personnel ought to be able to conduct an examination there. A July 2009 letter from the VAMC in Dallas, Texas, notified the Veteran that he was scheduled for an examination in August 2009 at the VAMC in Dallas, Texas. An August 2009 document from that VAMC, unsurprisingly, indicates that the Veteran did not appear for his examination. 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. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See, e.g., 38 U.S.C.A. § 5711. Nevertheless, VA's duty to assist an incarcerated Veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton, 8 Vet. App. at 191. Additionally, 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. Because the Veteran has not been properly scheduled for a VA examination as directed by the March 2006 Board remand, this case must be again be remanded. See Stegall v. West, 11 Vet. App. 268 (1998) (noting that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his PTSD. Take all necessary actions to: (1) arrange transportation of the Veteran to a VA facility for examination; or (2) contact the correctional facility and have their medical personnel conduct an examination according to VA examination work sheets; or (3) send a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton, supra. Follow the procedures set out in M21-1MR, Part III.iv.3.A.11.d, including conferring with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel or examining the Veteran at the prison by VHA medical personnel, a prison medical provider at VA expense, or a fee-basis provider contracted by VHA. Document all attempts to schedule the Veteran for his examination in the claim file and include negative responses. The claim folder should, to the extent possible, be made available to the examiner for review in conjunction with the examination. A complete rationale must be provided for any opinions. 2. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, and allow an appropriate period of time for response. 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). _________________________________________________ RONALD W. SCHOLZ 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) (2010).