Citation Nr: 1309044 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-41 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for fracture L4 status post laminectomy with fusion. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from November 1974 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In January 2004, the Committee on Waivers and Compromises located at the New York, New York, RO denied the Veteran's waiver of debts totaling $22,165.07. While the Veteran did not submit a notice of disagreement as to such decision, in connection with his January 2008 claim for an increased rating for his back disability, he has continuously challenged the validity of the debt and requested a waiver as he is experiencing a financial hardship. In this regard, he has been informed in an April 2010 letter from VA's Office of General Counsel to contact VA's Debt Management Center for inquiries regarding his debt. Specifically, the Debt Management Center, as opposed to the RO, is the appropriate facility to address such inquiries. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). During the pendency of this appeal, the Veteran has not been afforded a VA examination for his service-connected fracture of the L4 as he has been incarcerated throughout the pendency of his appeal. In this regard, the Board notes that the case was referred to the Gainesville, Florida, VA Medical Center in June 2008 for an examination; however, the RO was notified by the Medical Director of the North Florida/South Georgia Compensation & Pension Service that such facility cannot conducted examinations of incarcerated Veterans given that local VA policy conflicts with the Florida Department of Corrections policies. Specifically, local VA policy requires that mechanical restraints must be removed from the patient upon entry into the facility while the Florida Department of Corrections policy that requires mechanical restraints on an incarcerated individual must remain in place and officers carry weapons and must remain with the incarcerated individual during the examination. Because of the Veteran's incarcerated status, the typical procedures for scheduling an examination will likely not be adequate in this case. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has cautioned "those who adjudicate claims of incarcerated Veteran 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, 193 (1991)). In Bolton, the Court remanded a case where the RO claimed an inability to get a fee-basis physician to conduct an examination at a correctional facility. In that case, further efforts were deemed necessary to attempt to examine the Veteran. Id. The Board notes that the manual contains a provision for scheduling examinations of incarcerated Veterans, and calls for the agency of original jurisdiction 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, which seems likely in this case based on the June 2008 determination by the Medical Director of the North Florida/South Georgia Compensation & Pension Service, 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 the Veteran should be afforded a VA examination to determine the current nature and severity of his fracture of the L4 status post laminectomy with fusion. The Board also finds that there are outstanding treatment records that should be obtained for consideration in the Veteran's appeal. In this regard, the most recent treatment records contained in the claims file are dated in 2008. However, the Veteran has reported continued treatment through various Florida Department of Corrections facilities for his back disability, to include surgery in 2010. Therefore, he should be afforded an opportunity to identify any healthcare provider who treated him for his back disability dated from 2008 to the present. Thereafter, all identified records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding treatment records referable to his back disability dated from 2008 to the present. After securing any necessary authorization from him, obtain all identified treatment records, to include those from the Florida Department of Corrections. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The agency of original jurisdiction (AOJ) should take all reasonable measures to schedule the Veteran for VA examination for his service-connected fracture of the L4 status post laminectomy with fusion. The AOJ should confer with prison authorities to determine whether the Veteran may be escorted to a VA medical facility for the examination or if an examination at the prison is feasible. If that is not possible, which seems likely in this case based on the June 2008 determination by the Medical Director of the North Florida/South Georgia Compensation & Pension Service, 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. All efforts in this regard should be clearly documented in the claims file. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report) and all clinical findings should be reported in detail. A) The VA examiner should discuss the current nature and severity of all manifestations of the Veteran's fracture of the L4 status post laminectomy with fusion. B) The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should identify the range of motion of the lumbar spine in degrees and state whether there is any form of ankylosis. The examiner should also state the total duration of any incapacitating episodes over the past 12 months and identify the nature and severity of any neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. If such factors result in additional loss of range of motion, such loss should be expressed in degrees. If the examination cannot be accomplished because such arrangements could not be made with the State institution where the Veteran is incarcerated, the AOJ should forward the claims file to the appropriate VA medical professionals to obtain medical opinions that address the questions posed above. The examiner or reviewing medical professional should set forth all examination findings (if any), along with the complete rationale for the conclusions reached. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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. 2012). _________________________________________________ A. JAEGER 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) (2012).