Citation Nr: 1311005 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-47 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and an anxiety disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Veteran has not been afforded a VA examination in connection with his claims. The evidence of record indicates that the Veteran is currently incarcerated. In a January 2010 VA examination report, an examiner at the Milwaukee VA Medical Center (VAMC) noted that the Veteran "cannot be scheduled for an appointment at this facility because the prison will not allow the [V]eteran to travel for this exam." She noted that the Milwaukee VAMC "no longer has a fee basis psychologist who travels for prison exams and [the] staff psychologists have declined to do prison exams." Therefore, she concluded that an examination could not be completed until the Veteran is released from prison. In a January 2010 letter, the RO informed the Veteran that the correctional facility where he is currently incarcerated would not allow him to be scheduled for a VA examination at the Milwaukee VAMC. Additionally, the RO noted that there were no VA examiners available to travel to the prison. The United States Court of Appeals for Veterans Claims (Court) has specifically addressed VA's duty to assist incarcerated Veterans in cases where a VA examination is warranted. Specifically, the 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." See Bolton v. Brown, 8 Vet. App. 185 (1995) (citing Wood v. Derwinski, 1 Vet. App. 190 (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. In the case of VA medical examinations, 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 38 U.S.C.A. § 5711 (West 2002). However, 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. The VA Adjudication Procedure Manual (Manual) may also be helpful in this instance. The Manual contains a provision for scheduling examinations of incarcerated veterans. In particular, the Manual acknowledges that some state laws restrict the movement of and access to prison inmates and that it may not be possible for an incarcerated veteran to be examined at a VA medical facility or for Veterans Health Administration (VHA) personnel to perform the examination at the prison. The Manual states that, when an examination of an incarcerated veteran is required, the RO and/or local VHA Medical Examination Coordinator should confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel or examined at the prison by VHA personnel, prison medical providers at VA expense, or fee-basis providers contracted by VHA. See M21-1MR, Part III.iv.3.A.11.d. Other than the January 2010 VA examiner's note and the January 2010 correspondence from the RO to the Veteran, there are no other records documenting any additional attempts made or measures taken by the RO to obtain a VA examination for the Veteran. Indeed, it does not appear that the RO ever contacted or corresponded with the correctional facility housing the Veteran to determine whether the Veteran could be escorted to a VA medical facility for examination by VHA personnel or whether the medical personnel at the correctional facility could conduct an examination in accordance with VA examination worksheets. Instead, it appears that the claims file was merely sent to a VA examiner to obtain a medical opinion. In the present case, the effort of simply contacting the Milwaukee VAMC to inquire as to the availability of a mental health examiner who would be willing to evaluate the Veteran does not meet VA's duty to assist incarcerated veterans. Thus, the Board finds that, in order to comply fully with the duty to assist the Veteran in the development of facts pertinent to his claims, the RO should take further steps to to determine whether an examination can be scheduled consistent with the provisions set forth above. In addition, it appears that there may be additional medical records that are pertinent to the claims. In this regard, the record shows that the RO made unsuccessful attempts to obtain VA treatment records from the Cleveland VAMC in February 2009, September 2009, and December 2009. In a November 2009 report, a VA employee at the RO noted that the Cleveland VAMC informed him or her that a negative reply to the September 2009 records request had been mailed in October 2009. The employee at the Cleveland VAMC noted that the Veteran had some appointments scheduled in January 1994 and that there were laboratory results available. In a December 2009 report, a VA employee at the RO noted that the Cleveland VAMC was unable to locate the Veteran's clinical file. A review of the claims file and the Veteran's Virtual VA electronic record shows that the identified VA treatment records have not been associated with the record. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell, 2 Vet. App. at 611. Lastly, the Board notes that a decision on the claim for service connection could affect the outcome of the Veteran's claim for TDIU; therefore, the claims are inextricably intertwined. For this reason, the issue of entitlement to service connection must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the RO/AMC to adjudicate the inextricably intertwined issues. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should undertake appropriate development to obtain any outstanding medical records pertaining to treatment or evaluation of the Veteran's psychiatric disorder, to include any relevant VA treatment records that are not already of record, to specifically include, but not limited, to any VA treatment records from the Cleveland VAMC dated in January 1994. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) pertaining to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After obtaining any identified and available records, the Veteran should be afforded a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. In light of the Veteran's incarceration, the following options should be considered: (i) attempting to arrange transportation of the Veteran to a VA facility for examination; (ii) contacting the correctional facility and having their personnel conduct an examination according to VA examination worksheets; or (iii) sending a VA examiner to the correctional facility to conduct the examination. See Bolton v. Brown, 8 Vet. App. 185 (1995). The RO should take all reasonable measures to schedule the Veteran for the examination requested and confer with the prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination. See M21-1MR, Part III.iv.3.A.11.d. 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. The RO should determine which option is the most feasible and document all attempts taken under Bolton to schedule the Veteran for a VA examination related to his claims. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is requested to review the claims file and to identify all current psychiatric disorders. For each diagnosis identified, the examiner should discuss whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and 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 matters 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. 2012). _________________________________________________ JESSICA J. WILLS 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).