Citation Nr: 1336274 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-18 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a thyroid disability resulting in chemical removal of thyroid. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to November 1973, including service in the Republic of Vietnam. His awards and decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the benefit sought on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, a remand is required in this case in order to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. The Veteran seeks entitlement to service connection for a thyroid disability that he contends resulted from exposure to herbicides during his service in Vietnam. In December 2009, the Veteran provided an authorization form (VA Form 21-4142) for VA to obtain recent records pertaining to thyroid treatment from the California Department of Corrections and Rehabilitation (CDCR). After requests were made for these records, a March 2010 response from the CDCR indicated that the Veteran had been paroled and that his records were not readily available. The letter instructed that requests for records should be made from the Health Record Center, at the provided address. Review of the April 2010 rating decision indicates that a request for the Veteran's recent treatment records was not made from the CDCR Health Record Center. Additionally, while more recent mental health treatment records have been obtained, records of thyroid treatment dated since June 2008 have not been associated with the claims file. VA has a duty to make reasonable efforts to obtain records pertaining to the Veteran's thyroid treatment. 38 C.F.R. § 3.159(c) (2013). Accordingly, remand is required in order to request these records. Additionally, the record clearly indicates that the Veteran received treatment for a thyroid disability, which resulted in ablation of his thyroid in November 2007. The Veteran has attributed this thyroid disability to his service by means of exposure to herbicides. To date, however, there is no medical opinion of record with respect to the etiology of the Veteran's claimed disability. Without such opinion, the Board cannot fairly adjudicate this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law); see also Locklear v. Nicholson, 20 Vet. App. 410 (2006). Thus, on remand the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed thyroid disability. The record indicates that the Veteran has been and may still be incarcerated. The 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 provided to their fellow veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995). 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 (West 2002). Nevertheless, 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. Moreover, the VA Adjudication Procedure Manual contains a provision for scheduling examinations for incarcerated veterans. The Manual calls for the agency of original jurisdiction (AOJ) or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether the veteran should be escorted to a VA medical facility for examination by VHA personnel. 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. See M21-1MR, Part III, Subpart iv.3.A.11.d. Thus, if the Veteran is currently incarcerated, all reasonable measures should be taken to provide him with an examination in compliance with the procedures outlined in M21-1MR, Part III, Subpart iv.3.A.11.d, as noted herein. See also Bolton, 8 Vet. App. at 191. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, request copies of treatment records pertaining to his thyroid treatment, dated since June 2008, from the CDCR Health Record Center. Additionally, obtain copies of outstanding treatment records from any other identified providers that have rendered treatment for the Veteran's thyroid disability. Ask the Veteran to submit copies of any relevant treatment records in his possession, and inform him that he may obtain and submit identified records himself. All reasonable attempts should be made to obtain identified records. If any identified records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) ( 2013). 2. Thereafter, determine whether the Veteran is still incarcerated, and if so, attempt to schedule him for a VA examination in accordance with the procedures outlined at M21-1MR, Part III, Subpart iv.3.A.11.d. If he has been released from incarceration, schedule him for a VA endocrinology examination in accordance with regular procedures. The claims file and a complete copy of this remand must be made available to and reviewed by the examiner in association with the examination. The examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. If the Veteran has not been released from incarceration, and for whatever reason cannot be provided with a VA examination after compliance with M21-1MR, Part III, Subpart iv.3.A.11.d, his claims file and a complete copy of this REMAND should still be forwarded to an appropriate VA examiner to obtain a medical opinion as described herein. The examiner should diagnose and describe all thyroid disabilities the Veteran has had, and his current medical state with regard to the removal of his thyroid. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any thyroid disability suffered by the Veteran, which has resulted in ablation of his thyroid, had its clinical onset during active service or is related to an in-service disease, event, or injury, to include as a result of herbicide exposure (i.e., Agent Orange). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is 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, 271 (1998). 4. Finally, readjudicate the Veteran's service connection claim on appeal. If his claim remains denied, provide him and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran 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. 2013). _________________________________________________ Thomas H. O'Shay Acting 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. See 38 C.F.R. § 20.1100(b) (2013).