Citation Nr: 1341305 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-39 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable evaluation for bilateral hearing loss. ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 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 on his part. REMAND In this case, the Veteran, in pertinent part, is service connected for PTSD, currently evaluated as 30 percent disabling, and for bilateral hearing loss, rated noncompensably disabling. In a January 2010 rating decision, the RO relied on an October 2009 VA PTSD compensation and pension (C & P) examination in continuing the Veteran's 30 percent evaluation for PTSD. Prior to that decision, an updated VA audiological examination was not conducted, as the Veteran is incarcerated at the Deerfield Correctional Center, and VA indicated that the equipment required to conduct an audiological examination was not portable. As such, it was determined that such an examination could not be conducted during the Veteran's period of confinement. The Veteran, in several statements associated with the claims file, has consistently asserted that each condition continues to increase in severity, and that PTSD symptoms have worsened even since the time of the October 2009 VA examination. He has also argued that the October 2009 VA examination was inadequate for rating purposes, as a prison nurse was in attendance during the interview, and the Veteran maintained that he does not trust employees of the facility (and therefore provided insincere responses to questions posed to him). As such, a new VA C & P examination is warranted for each claimed disability. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The United States Court of Appeals for Veterans Claims (Court) has specifically addressed VA's duty to assist incarcerated veterans in cases where a VA examination is warranted. Specifically, the Court has cautioned "those who adjudicate claims of incarcerated Veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow Veterans." See Bolton v. Brown, 8 Vet. App. 185 (1995) (citing Wood v. Derwinski, 1 Vet. App. 190 (1991)). In Bolton, the Court remanded a case where the RO claimed an inability to get a fee-basis physician to conduct an examination at a correctional facility. In that case, further efforts were deemed necessary to attempt to examine the Veteran. In this case, the Board interprets Bolton to require that necessary arrangements be made, if at all possible, for VA to conduct a complete audiological examination (as well as an additional VA PTSD examination). 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 (West 2002). 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. The VA Adjudication Procedure Manual may also be helpful in this instance. It contains a provision for scheduling examinations of 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, it should be noted that 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.iv.3.A.11.d. Here, there are no other records documenting any additional attempts made, or measures taken, to obtain a VA audiological examination for the Veteran. Indeed, it does not appear that the AOJ ever contacted or corresponded with the correctional facility housing the Veteran to determine whether the Veteran could be escorted to a VA medical facility for examination by VHA personnel, or whether the medical personnel at the correctional facility could conduct an examination in accordance to VA examination worksheets. In the present case, the effort made to evaluate the Veteran at the correctional facility, or off site, does not meet VA's duty to assist incarcerated veterans. Thus, the Board finds that, in order to comply fully with the duty to assist the Veteran in the development of facts pertinent to his claims, the AOJ should take further steps to afford the Veteran the above listed VA examinations, to include an audiological examination, consistent with the provisions set out above. The Board also notes that a letter from VA, dated October 11, 2013, indicated that the Veteran's compensation benefits had been reinstated, because he had been released from incarceration, though this is not confirmed in the record. If the Veteran has been released, he should be scheduled for an updated VA PTSD examination, as well as a VA audiological examination, at the closest VA facility to the Veteran's address of record. Furthermore, additional treatment records pertinent to the Veteran's PTSD claim (from sessions conducted at the Deerfield Correctional Center) were associated with the claims file after the October 2009 VA examination was conducted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (medical examinations generally should "take into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). Should the Veteran still be incarcerated, at this facility or any other, alternate measures must be taken to schedule the Veteran for VA examinations pursuant to Bolton, and these measures must be documented. Once these measures have been exhausted, if a determination is made that a VA examination cannot be scheduled, the RO should have the entire claims folder reviewed by a VA C&P examiner to obtain a medical opinion pertinent to the issue, even in the absence of the Veteran. Finally, in a statement dated in September 2010, the Veteran indicated that VA treatment records from the Washington, DC VA Medical Center (VAMC), relevant to his current appeal, had not been associated with the record. Following a review of the claims file, as well as the Virtual VA electronic records system, these additional VA reports have not been associated with the record to date. In cases such as these, VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate his claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013). Therefore, on remand, the RO/AMC should associate with the claims file all existing records of VA treatment, from any appropriate VA facility. After the additional evidence has been associated with the claims file, to the extent available, the RO shall make all necessary arrangements to provide current VA PTSD and audiological examinations, if all possible, and then readjudicate the Veteran's claims with the benefit of consideration of all evidence added to the file since the Statement of the Case issued in September 2010. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should request any treatment records pertaining to the Veteran from the Deerfield Correctional Center dating from August 2012 to the present. If the records are not available, or if the search for the records yields a negative result, that fact should be clearly documented in the claims file, and the Veteran notified of the efforts that were made to obtain such records. 2. The RO/AMC should attempt to obtain and associate with the Veteran's claims file any outstanding VA outpatient treatment records dated from September 2008 to the present from the VAMC in Washington, DC, or any other appropriate facility. If the records are not available, or if the search for the records yields a negative result, that fact should be clearly documented in the claims file, and the Veteran notified of the efforts that were made to obtain such records. 3. After all available records are associated with the Veteran's claims file, the RO/AMC shall schedule the Veteran for a VA PTSD examination to determine the current severity of any psychiatric disorder that may be present. In light of the Veteran's possible continued incarceration, the following options for undertaking the examination are to be explored, to include (i) attempting to arrange transportation of the Veteran to a VA facility for examination; (ii) contacting the correctional facility and having their personnel conduct an examination according to VA examination worksheets; or (iii) sending a VA examiner to the correctional facility to conduct the examination. See Bolton v. Brown, 8 Vet. App. 185 (1995). Take all reasonable measures to schedule the Veteran for the examination requested, and confer with the prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination. See M21-1MR, Part III.iv.3.A.11.d. 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. Determine which option is the most feasible and document all attempts taken to schedule the Veteran for a VA examination related to his claim. If at all possible and deemed advisable, please conduct the examination without the supervision of any facility personnel. If the Veteran is able to be scheduled for a VA examination, the claims file and a copy of this REMAND must be made available to the examiner for review, and the examination report should reflect that the claims file was reviewed in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner who personally interviews the Veteran is required to review all pertinent records, including relevant VA and private treatment reports, to include records from Deerfield Correctional Center. 4. After all available records are associated with the Veteran's claims file, the RO/AMC shall schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss. In light of the Veteran's possible continued incarceration, the following options for undertaking the examination are to be explored, to include (i) attempting to arrange transportation of the Veteran to a VA facility for examination; (ii) contacting the correctional facility and having their personnel conduct an examination according to VA examination worksheets; or (iii) sending a VA examiner to the correctional facility to conduct the examination. See Bolton v. Brown, 8 Vet. App. 185 (1995). Take all reasonable measures to schedule the Veteran for the examination requested, and confer with the prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination. See M21-1MR, Part III.iv.3.A.11.d. 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. Determine which option is the most feasible and document all attempts taken to schedule the Veteran for a VA examination related to his claim. If the Veteran is able to be scheduled for a VA examination, the claims file and a copy of this REMAND must be made available to the examiner for review, and the examination report should reflect that the claims file was reviewed in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. 5. If, and only if the Veteran is currently incarcerated and after attempting to obtain a VA, a fee-basis or a correctional examination, the RO cannot procure either examination, such should be documented in the claims file and the RO/AMC should then send the claims folder to a VA C & P examiner to review the entire file, to include any updated records provided by the correctional facility, and any additional VA outpatient treatment records obtained pursuant to this remand, and provide an opinion regarding the current degree of severity of each claimed disorder, in accordance with the information requested in paragraphs 3 and 4 above. 6. After completion of the above and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefits sought. Unless the benefits sought on appeal are granted in full, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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. 2013). _________________________________________________ BARBARA B. COPELAND 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).