Citation Nr: 1335340 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-31 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a sleep disorder (claimed as sleep disturbance), to include as due to an undiagnosed illness. 3. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to April 1986, and from May 1988 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran requested a Travel Board hearing in August 2009 (see VA Form 9); that request was withdrawn in June 2011 correspondence. See VA Form 21-4138, June 2011. The issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for a skin disorder and muscle and joint pain have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate 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 After a thorough review of the Veteran's VA claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claims of entitlement to service connection for a gastrointestinal disorder, a sleep disorder (claimed as sleep disturbance), and headaches, all to include as due to an undiagnosed illness. The Veteran, who is currently incarcerated and has been since 1996, was scheduled for a "Gulf War Guidelines" VA examination by the RO in October 2009. A VA mental examination was also scheduled at that time (although not for purposes relating to the claims on appeal). Based on the VA mental examination report contained in the claims file, it appears that a VA mental health professional was sent to the Veteran's correctional facility to examine the Veteran in October 2009. In this regard, a September 2009 Report of Contact reflects that the RO contacted the correctional facility's health services administrator, G.W., to determine whether the Veteran could be transported to the Chattanooga VA Medical Center (VAMC) for the requested examinations. According to G.W., the prison would not escort the Veteran to the VAMC; G.W. did, however, state that VA could send a medical professional to the correctional facility to examine the Veteran. Subsequently, an October 2009 note from Medical Administrative Services (MAS) indicated that VA "did not have a provider to go to the prison to perform the Gulf War examination" and the examination was cancelled. Since that time, the Veteran has submitted statements reflecting that he is currently being treated by/and transported to outside medical facilities in Nashville, Tennessee, and requested that VA contact the correctional facility's health administrator to arrange for his transportation to a VA facility while he was in Nashville for several upcoming surgeries. The Veterans Benefits Administration Adjudication Manual M21-1MR, Part III, Subpart iv, Chapter 3.A.11.d. provides for a number of alternatives to be explored in trying to arrange for a VA examination for an incarcerated Veteran. They include having the Veteran transported to a VA facility, being examined at the prison facility by VA personnel, having an examination performed by prison medical officials at VA expense, or have the examination performed by fee-basis providers contracted by VA. See also Bolton v. Brown, 8 Vet. App. 185 (1995). The provision further provides that if a problem cannot be resolved at the local level, the Compensation and Pension (C&P) Service Program Review Staff should be contacted for assistance. In light of the Veteran's recent contentions regarding outside treatment, and further considering that there is no evidence contained in the claims file that either a fee-basis provider, or a prison medical official was considered in this case, the case must be returned for a C&P examination to be scheduled. Specifically, an examination should be requested in accordance with M21-1MR, Part III, Subpart iv, Chapter 3, Section A. In addition, the claims file contains correctional center treatment records dating up to February 2009. As there may be outstanding records dated after February 2009 pertinent to the Veteran's claim, a request should also be made for all outstanding medical records from February 2009 to the present from the Southeastern Tennessee State Regional Correctional Facility (Health Services) and/or State of Tennessee Department of Correction. 38 C.F.R. § 3.159(c)(1). The Board lastly notes that any and all records of VA treatment dated prior to October 1994 should be obtained upon remand. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. This includes records of treatment from the Southeastern Tennessee State Regional Correctional Facility (Health Services) and/or State of Tennessee Department of Correction dated from February 2009 to the present. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. Obtain all records of VA treatment, if any, dated prior to October 1994. 3.Obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed gastrointestinal disorder, sleep disorder (sleep disturbance), and headache/migraine disorder at his current correctional facility, either by VA personnel, prison medical officials at VA expense, or have the examination performed by fee-basis providers contracted by VA. All attempts made to arrange the examination should be clearly documented. See M21-1MR, Part III, Subpart iv, Chapter 3, Section A. The claims folder must be provided to the examiner for review of pertinent documents therein. The examiner should also be advised that the Veteran is competent to report symptoms and injuries, his history, and any continuity of symptoms, and that such statements must be considered in formulating the necessary opinions. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examination reports should specifically state that such a review was conducted. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner is requested to specifically address the following: Whether the claimed conditions are indicative of: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis. The examiner should also advance an opinion as to whether it is at least as likely as not that any gastrointestinal disorder, sleep disturbance disorder, and/or headache disorder had their onset during active service; or, are causally related to the Veteran's service (including the Veteran's various in-service gastrointestinal and headache complaints/treatment); or, were manifested within one year of discharge from service. The examiner must provide a rationale for any and all opinions expressed, which should be set forth in a legible report. 5. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion(s) to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, the issue should be returned to the Board for further appellate review. 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). _________________________________________________ WAYNE M. BRAEUER 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).