Citation Nr: 1126099 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 09-21 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for residuals of a back injury with arthritis (low back disability). ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Statements from the Veteran received by VA between February and April 2010 requested entitlement to service connection for a psychiatric disorder, hypertension, and respiratory disability. Although the RO sent the Veteran letters related to these claims requesting additional information, including in July 2010 and January 2011, and noting that a decision would be made after 30 days if a response was not received from the Veteran, no rating decision on these issues is of record. Therefore, these issues are referred to the RO for adjudication. The Veteran served on active duty from February 1977 to October 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of a October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia (RO). It is noted that the Veteran is currently incarcerated. The issue on appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's service treatment records indicate that he injured his back in a parachute jump in service in July 1979; X-rays at the time were reported to be normal. Post-service treatment records beginning in April 1999 include complaints of low back pain and a history of low back pain since service. There is, however, no post-service low back evaluation with nexus opinion on file. Although the Veteran is incarcerated with the West Virginia Department of Corrections, his incarceration does not negate VA's statutory obligation to assist in the development of his claim. 38 U.S.C.A. § 5103A. Further, the Court has indicated that even though incarcerated, a Veteran should be accorded the same assistance as his fellow, non-incarcerated Veterans. See Bolton v. Brown, 8 Vet. App. 185 (1995). While VA does not have the authority under 38 U.S.C.A. § 5711 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, if necessary, to either having him examined by a fee-basis physician or requiring a VA physician to examine him at the prison where he resides. See Id. at 191. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO will request that the Veteran provide a written statement on whether he has been provided treatment for his low back since January 2010, the date of the most recent treatment on file. After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform the Veteran of this and provide him an opportunity to submit copies of the outstanding medical records. 2. Upon the passage of a reasonable amount of time or upon the Veteran's response, the AMC/RO must arrange for an appropriate health care provider to review the claims files and provide an opinion on whether the Veteran's current low back disorder is causally related to service. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be made available to the health care provider for review in conjunction with the opinion, and the reviewer must specifically acknowledge receipt and review of these materials in any report generated. b. After review of the claims files, the reviewer must discuss whether the Veteran's current low back disorder is causally related to service. The opinion must include a discussion of the service notation of a low back injury and provide a rationale for all conclusions. In all conclusions, the opinion must identify and explain the medical basis or bases, with identification of the evidence of record. If the reviewer is unable to make a determination without resorting to mere speculation, the reviewer should so state. c. If the reviewer responds to the above inquiry that he or she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. d. If it is determined that a current examination is needed in order to provide the requested opinion, an examination will be conducted in accordance with Bolton. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail and correlated to a specific diagnosis. The report prepared must be typed. 3. Thereafter, the AMC/RO will review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See 38 C.F.R. § 4.2 (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 4. Thereafter, the AMC/RO will consider all of the evidence of record and re-adjudicate the Veteran's claim for service connection for a low back disability based on all of the evidence on file. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case ("SSOC"). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).