Citation Nr: 1329759 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 04-29 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1, 1974 to December 10, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2008 the Board remanded the claim for additional development, including, in pertinent part, a VA examination. Pursuant to the Board's remand, the Veteran was scheduled for VA examinations in June 2010 and May 2011 for which he failed to report. The Veteran subsequently informed VA that he was unable to report for these examinations because he was incarcerated at the time. In October 2011, the Board denied the claim for entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which granted the parties' joint motion for remand (JMR) in a December 2012 order, partially vacating the Board's decision and remanding the matter to the Board for further action. In addition to the paper claims file, there is a paperless, electronic claims file (VBMS) associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for an acquired psychiatric disorder. For the reasons that follow, his claim must be remanded. Following the Board's October 2011 decision denying the claim, the Court remanded this matter to the Board in December 2012. The Court found, as expressed in the JMR, that the Board failed to provide the Veteran with a VA examination and nexus opinion, in violation of its duty to assist. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012). In light of this, the Board must remand this matter in order that VA may undertake the effort to provide the Veteran with a VA examination. The Board notes at the outset that the most recent evidence suggests the Veteran may no longer be incarcerated. In lay statements, the Veteran had reported that he was scheduled to be released in September 2012. Indeed, letters sent in February 2013 and March 2013 to the correctional facility where the Veteran had been housed were undelivered "Return to Sender." As of September 2013, VA's electronic database (VACOLS) and the Veteran's VBMS file reflect a new mailing address that indicates that the Veteran is living in an apartment in Pinellas Park, Florida. Therefore, on remand, the RO/AMC should first verify whether the Veteran is still incarcerated. If he is not, a VA examination should be scheduled as is routine accomplished. If the Veteran is incarcerated, then the RO/AMC must make the efforts as set out in VA's "Fast Letter 11-22"on the subject, which mentions substantial efforts and exhausting all possible avenues to provide the Veteran with a VA examination. As elucidated by the JMR, there are four primary possibilities to provide an examination to an incarcerated Veteran: 1. Cooperating with prison officials to bring the Veteran to a VA medical center (VAMC) for examination, 2. Sending a VA examiner to the prison to examine the Veteran, 3. Requesting that prison doctors provide the examination, and 4. Waiting until the Veteran's release from prison to provide an examination. If the conflict of policies between the North Florida/South Georgia VAMC and the Florida Department of Corrections (DOC) regarding the removal of shackles outside the prison complex is at issue, the RO/AMC must attempt to negotiate with the DOC to overcome this problem. The VAMC should also consider whether a psychiatric examination like the one required in this case actually necessitates unbound hands. If the first option is not viable, the RO/AMC may not reject the second possibility merely because it is "not within their scope of practice." The JMR found that this is not consistent with exhausting every avenue to examine the Veteran. If the first and second possibilities are not viable, the RO/AMC should consider that VA's detailed Disability Worksheets and Clinician's Guide could assist a prison doctor in performing a proxy examination. Concerns about Compensation & Pension certification seem misplaced given that private medical opinions are routinely considered in the adjudication of claims for benefits. In a July 2011 lay statement, the Veteran requested that his examination be postponed until after his anticipated September 2012 release. If the RO/AMC is unwilling to wait until after the Veteran is released, it must sufficiently explain why a delay is not possible. Finally, if guidance is sought from the VA Central Office (VACO) to resolve this issue, the RO/AMC must make multiple attempts to contact VACO to receive guidance. (See JMR at page 4.) Accordingly, the case is REMANDED for the following actions: 1. Determine whether the Veteran is incarcerated. 2. If he is NOT incarcerated, schedule the Veteran for an appropriate VA psychiatric examination to address the etiology of any currently-diagnosed acquired psychiatric disorders. The examiner should review the Veteran's claims file in conjunction with his examination. After conducting a relevant examination of the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not that any psychiatric disability found to be present is related to or had its onset in service. An explanation for the conclusions reached should be set forth. If the examiner determines that a medical opinion cannot be rendered without resorting to speculation, an explanation as to why that is so should be expressed, to include a recitation of any missing facts necessary to render a non-speculative opinion. 3. If he IS incarcerated, all of the instructions in Directive #2 still apply, and the RO/AMC must exhaust all possibilities to provide the Veteran with an examination, including, as appropriate: a) Exhausting all possible avenues of negotiating with the DOC regarding the removal of shackles outside the prison complex, or considering whether the examination may be conducted with the Veteran shackled. b) Sending a VA examiner to the prison to conduct the examination. (The Court found that failing to undertake this option was not adequately explained by merely stating it was "not within their scope of practice" to do so. If this is not done, and no examination is accomplished, a fuller explanation for not undertaking this option should be provided.) c) Considering that VA's detailed Disability Worksheets and Clinician's Guide could assist a prison doctor in performing a proxy examination. d) Making multiple attempts to seek guidance from VACO, if applicable. e) Postponing the examination until after his release. 4. Then, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant 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). _________________________________________________ MICHAEL E. KILCOYNE 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) (2013).