Citation Nr: 1332645 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-31 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from July 1977 to June 1978. This matter comes before the Board of Veterans' Affairs (Board) on appeal from a December 2007 rating decision by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for a psychiatric disorder. In a June 2010 decision, the Board recharacterized the issue to reflect receipt of previously unconsidered service department records relevant to the claim; by regulation, a reconsideration of the prior claim was required on the merits. 38 C.F.R. § 3.156(c). The Board then remanded the claim for additional development. The matter is now returned to the Board for further appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. The Veteran requested a hearing before a Veterans Law Judge, to be held at the RO. Such was scheduled, but the Veteran failed to report without explanation or attempt to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). 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 duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Here, the Veteran reported in a March 1999 statement that he had "been in and out of the VA in Johnson City" for the past 20 years, as well as jail and mental institutions. An August 1998 discharge note from the Johnson City VA medical center (VAMC) also indicates that the Veteran was well known based on his "long history" of substance abuse. Although a request for records from the VAMC was made in April 2001, such was limited to specific records related to back, shoulder, and overdose problems in 1980, 1983, and 1993. It would not have, and did not, result in obtaining a complete VA record. Subsequent production of VA records have not included the older records; it is possible that these records may include relevant information on the Veteran's claim, and hence must be secured on remand. Additionally, as the Veteran indicates other sources of records over the years since service, prior to 1995, he should be asked to identify such specifically so that proper assistance in obtaining those potentially relevant records may be provided. The duty to assist a Veteran in substantiating a claim also includes the duty to provide an examination when necessary for adjudication of the claim. 38 C.F.R. § 3.19(c)(4). The Board determined in June 2010 that an updated, clearer opinion was required, and directed that an examination be conducted on remand. However, the Veteran failed to report for the requested October 2010 examination without explanation or request to reschedule. However, a copy of the scheduling notification letter to the Veteran is not of record. In a June 2013 statement, his representative has stated that the Veteran is currently incarcerated, and requested remand for rescheduling of the missed examination. In light of the need to remand the matter for additional development, the Board has determined that the Veteran should be afforded another opportunity to appear for examination. It appears the Veteran may well continue to be incarcerated. 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); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995). 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, e.g., 38 U.S.C.A. § 5711. 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. VA's Adjudication Procedures Manual contains instructions on attempting to provide an examination for an incarcerated Veteran. See M21-1MR, Part III.iv.3.A.11.d. Therefore, in scheduling the examination of an incarcerated Veteran, VA should confer with prison authorities. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all medical records not already of record (to include those from jails and mental institutions) pertaining to treatment for mental health problems. Request that the Veteran return properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs for each identified non-VA provider. Upon receipt of such, VA must take appropriate action to contact the identified providers and request all records related to the current appeal. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Request complete VA treatment records from the medical center in Johnson City, Tennessee, for the period of June 1978 to May 1995. Also attempt to obtain any recent VA records that are not already of record and any other VA records that may be identified by the Veteran in response to step 1. All efforts must be documented in the record, and must include specific requests to search and/or recall any archived or otherwise stored records. 3. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. Then, schedule the Veteran for a VA mental disorders examination. The claims folder must be reviewed in conjunction with the examination. The notice of scheduling must be associated with the claims file; this includes documentation of efforts to coordinate examination with jail officials, if necessary. The examiner should identify all currently diagnosed acquired psychiatric disorders. The examiner is asked to express an opinion as to when the Veteran's psychiatric disorder(s), other than a personality disorder, but including major depression, depressive disorder, bipolar disorder, kleptomania, generalized anxiety disorder, impulse control disorder and a psychotic disorder first manifested (i.e., prior to service, in service, or after service). If the examiner determines that any of the Veteran's psychiatric disorder(s), other than a personality disorder clearly and unmistakably (i.e., undebatably) preexisted service, the examiner should so state. Please provide a complete explanation for the opinion. If the Veteran had a pre-existing disorder, then state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing psychiatric disorder WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion. With respect to any disorders, other than a personality disorder, that the examiner finds did not clearly and unmistakably pre-exist service, the examiner should opine as to whether it is more likely than not (meaning likelihood greater than 50%), at least as likely as not (meaning likelihood of at least 50%), or less likely than not or unlikely (meaning that there is a less than 50% likelihood) that the psychiatric disorder(s) began in or are related to service, including the Veteran's head injury. Please provide a complete explanation for the opinion. The examiner should also opine with respect to the Veteran's personality disorder as to whether there was a superimposed injury or psychiatric disorder in service that resulted in additional disability. Please provide a complete explanation for the opinion. 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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).