Citation Nr: 1328535 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-12 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for obstruction of the lacrimal drainage system of the left eye. 3. Entitlement to service connection for loss of eyelashes of the right eye, including as secondary to service- connected obstruction of the lacrimal drainage system of the right eye. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from August 30, 1979, to February 16, 1984, and from February 17, 1984, to October 25, 1985. The Veteran's discharge for his period of service ending on February 16, 1984, was an honorable discharge. However, the Veteran's discharge for his second period of service beginning on February 17, 1984, was a dishonorable discharge. Under VA laws and regulations, and for benefits purposes, an "appellant" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a) (2012). A "discharge" or "release" includes retirement from the active military, naval, or air service. 38 C.F.R. § 3.1(h). This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia and an October 2008 rating decision of the VA RO in Atlanta, Georgia. The Veteran was advised in February 2011 correspondence that he was scheduled for a hearing before a Decision Review Officer (DRO) at the RO in Atlanta, Georgia in March 2011. The Veteran submitted a statement in March 2011 and indicated that he did not desire a hearing before a DRO and instead wanted to testify at a hearing before the Board. The Veteran was advised in August 2012 correspondence that he was scheduled for a hearing before a member of the Board in September 2012. The Veteran failed to report for the hearing and his request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) When this case was before the Board in December 2012, it was decided in part and remanded in part. It is now before the Board for further appellate action. 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 A review of the claims file reveals that a remand is necessary before a decision on the merits of the underlying claim of service connection for obstruction of the lacrimal drainage system of the left eye and the claim of service connection for loss of eyelashes of the right eye can be reached. The Veteran claims that he has obstruction of the lacrimal drainage system of the left eye directly related to service and loss of eyelashes of the right eye secondary to his service-connected obstruction of the lacrimal drainage system of the right eye. In the December 2012 remand, the Board remanded for a VA examination. 38 C.F.R. § 3.159(c) (2012); McLendon v. Nicholson, 20 Vet.App. 79 (2006). Pursuant to the Board's remand, the AMC scheduled an examination for the Veteran in December 2012 but the Veteran did not appear. Since that time, in April 2013, the Veteran informed the Board that he was unable to attend the VA examination because he was incarcerated. From a review of the record, it is not clear that the Veteran was incarcerated in December 2012, as he corresponded with VA in January 2013 from his usual address of record. However, it also appears that the Veterans Health Administration used a different address to notify the Veteran of his examination than the most recent address that was of record. As a result, another examination should be scheduled. VA's 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. See 38 U.S.C.A. § 5107(a) (West 2002); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995). 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. VA's Adjudication Manual Rewrite contains instructions on attempting to provide an examination for an incarcerated Veteran. See M21-1MR, Part III.iv.3.A.11.d. The Manual Rewrite provides that, when examination of an incarcerated veteran is required, the RO and/or the 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. The Manual Rewrite also provides that, if a problem cannot be resolved at the local level, contact the C&P Service Program Review Staff (214A) for assistance. The AMC should attempt to afford the Veteran a VA examination and, in the event that this is not possible, document its efforts to do so. All pertinent VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA medical treatment records dated since June 2012. 2. After obtaining any additional records to the extent possible, schedule an examination for the Veteran. In doing so, follow the detailed instructions in the Manual Rewrite provisions and Bolton detailed below: 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. VA's Adjudication Manual Rewrite contains instructions on attempting to provide an examination for an incarcerated Veteran. See M21-1MR, Part III.iv.3.A.11.d. The Manual Rewrite provides that, when examination of an incarcerated veteran is required, the RO and/or the 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. The Manual Rewrite also provides that, if a problem cannot be resolved at the local level, contact the C&P Service Program Review Staff (214A) for assistance. If, after following these instructions, an examination cannot be conducted, document all efforts to schedule the examinations, including a memorandum to the file. As for the examination, the Veteran should be afforded an examination to evaluate the nature and etiology of his claimed obstruction of the lacrimal drainage system of the left eye and loss of eyelashes of the right eye. The claims file should be made available to and reviewed by the examiner and the examiner should note such review in the examination report. Following evaluation of the Veteran, the examiner must express opinions as follows: (a) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's obstruction of the lacrimal drainage system of the left eye began in or is otherwise the result of his active service including treatment for recurrent tear duct obstruction. A complete explanation for the opinion must be provided. (b) The examiner should also indicate whether the loss of lashes of the right eye at least as likely as not began in or is otherwise the result of his active service including treatment for recurrent tear duct obstruction. A complete explanation for the opinion must be provided. (c) The examiner must also indicate whether the Veteran's loss of lashes of the right eye was at least as likely as not caused by service- connected obstruction of the lacrimal drainage system of the right eye. A complete rationale for any opinion expressed must be provided. (d) The examiner must also indicate whether the Veteran's loss of lashes of the right eye was at least as likely as not aggravated (increased in severity beyond the natural course of the condition) by the service- connected obstruction of the lacrimal drainage system of the right eye. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's loss of lashes found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service- connected disability. The examiner is informed that the Veteran's service treatment records reflect that the Veteran had a chronic recurrent tear duct obstruction since 1981. The records do not indicate if the obstructed tear duct was for the right, left, or both eyes. The post-service medical records reflect that the Veteran underwent a dacryocystorhinostomy in both eyes at VA in July 2009. His VA surgeon indicated that he had tear duct surgery for lacrimal obstruction in both eyes and should be service-connected for both eyes. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports should be taken into account in formulating the requested opinions. A complete explanation for the opinion must be provided. 3. Then, readjudicate the issues on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ S. S. TOTH 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).