Citation Nr: 1222686 Decision Date: 06/28/12 Archive Date: 07/10/12 DOCKET NO. 06-27 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a stomach disorder. ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to July 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Atlanta, Georgia RO has since retained jurisdiction of the claim. The case was brought before the Board in June 2009, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The claim was again before the Board in April 2012. The 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 Unfortunately, another remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In the June 2009 remand, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the etiology of his stomach disorder. If the Veteran was unable to be transported to a VA Medical Center (VAMC), the AOJ was to schedule the Veteran for a VA examination at the facility where he is currently incarcerated. If a physician at this facility was either unwilling or unable to conduct an examination then the Veteran's claims file was to be given to a VA examiner so that a medical opinion could be obtained. The Board notes that a VA examiner offered an opinion in September 2011 as to the etiology of the Veteran's stomach disorder. The September 2011 VA examiner stated that a C & P examination could not be conducted due to local VA policy NF/SG (North Florida/South Georgia) VHA Memo 136-20 which stated "mechanical restraints must be removed from the forensic patient upon entry into the facility." However, the Florida Department of Corrections policies leave mechanical restraints on an incarcerated individual and officers carry weapons and remain with the incarcerated individual during the examination. As the VA examination was scheduled for the Lake City VA Medical Center in Florida, this local VA policy may be applicable. However, as instructed in the June 2009 Board remand, the AOJ was to first schedule the Veteran for a VA examination at a VAMC. An August 2011 Report of Contact notes that an employee from the AOJ contacted the Baldwin State Prison and learned that the Veteran had been transferred to a new prison. She also received contact information regarding scheduling the Veteran for a VA examination. An August 2011 letter to the Veteran stated that a VA examination had been requested and he would be notified of his appointment. There is no further follow up for the Veteran's VA examination at a VAMC. Moreover, even assuming the Veteran could not be scheduled for a VA examination at the VAMC; there is no evidence that the AOJ fulfilled the second directive, which was to schedule the Veteran for a VA examination at the prison where he is incarcerated. An April 2010 fax from the AOJ to the prison inquired whether an examination could be performed on the Veteran. However, there is no response to this fax of record. Because of the Veteran's incarcerated status, the typical procedures for scheduling an examination will likely not be adequate in this case. The Court of Appeals for Veterans Claims (Court) has cautioned "those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans." Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (citing Wood v. Derwinski, 1 Vet. App. 190 (1991)). The VA Adjudication Procedure Manual may be helpful in this instance. It 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, it should be noted that 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. Thus, the Board finds that in order to fully comply with the duty to assist the Veteran in the development of facts pertinent to his claims, the AOJ should take further steps to afford the Veteran one of the above listed VA examinations, consistent with the provisions set out above. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. As there is no evidence in the file as to why the Veteran was not scheduled for a VA examination at the VAMC, or in the alternative, why he could not receive an examination where he is incarcerated, the claim must be remanded again. Accordingly, the case is REMANDED for the following actions: 1. If possible, the AOJ should afford the Veteran an appropriate examination at a VAMC. The claims folder should be made available and reviewed by the examiner, and the examiner should note on the examination report that such a review was completed. The examiner is asked to render an opinion as to whether there is a 50 percent probability or greater that the Veteran has a current stomach disability related to service, taking into account in-service notations regarding stomach treatment. The examiner should also approximate the date of onset of any current stomach disability. The rationale for any opinion expressed should be provided in a legible report. If the Veteran cannot be scheduled for a VA examination at the VAMC, the AOJ should notify the Veteran and indicate the reason. This evidence should be included in the claims file. If the Veteran remains incarcerated and it is not possible to afford him an examination at the VAMC, 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. The AOJ should determine which option is the most feasible. See M21-1MR, Part III.iv.3.A.11.d. The AOJ should arrange for the Veteran's claims folder to be reviewed, and a note on the examination report that such a review was completed. After his or her review, the examiner should opine as to whether there is a 50 percent probability or greater that the Veteran has a current stomach disability related to service, taking into account in-service notations regarding stomach treatment. The examiner should also approximate the date of onset of any current stomach disability. The rationale for any opinion expressed should be provided in a legible report. If the AOJ finds that the Veteran cannot be scheduled for an examination at the correctional facility where he is incarcerated, the AOJ should notify the Veteran and indicate the reason. This evidence should be included in the claims file. If the Veteran remains incarcerated and a physician at the correctional facility is unwilling or unable to perform the above examination, the RO should arrange for the Veteran's claims folder to be reviewed by an appropriate VA physician. The physician should note on the examination report that such a review was completed. After his or her review, the physician should opine as to whether there is a 50 percent probability or greater that the Veteran has a current stomach disability related to service, taking into account in-service notations regarding stomach treatment. The examiner should also approximate the date of onset of any current stomach disability. The rationale for any opinion expressed should be provided in a legible report. 2. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran should be furnished with an appropriate supplemental statement of the case. The Veteran should also be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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. 2011). _________________________________________________ LANA K. JENG Acting 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) (2011).