Citation Nr: 1501633 Decision Date: 01/13/15 Archive Date: 01/20/15 DOCKET NO. 08-38 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disorder, claimed as secondary to service-connected bilateral hallux valgus and bilateral knee disabilities. 2. Entitlement to service connection for a tilt in the hips, claimed as secondary to service-connected bilateral hallux valgus and bilateral knee disabilities. 3. Entitlement to an initial disability rating higher than 30 percent for depression, not otherwise specified, with anxiety, not otherwise specified. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that in his November 2008 substantive appeal the Veteran requested a Travel Board hearing, which was duly scheduled for April 2013; and in February 2013 notice of the scheduled hearing was sent to the address of record. However, the Veteran did not report for the scheduled hearing or request that the hearing be rescheduled, so his request for a Board hearing is deemed abandoned. In May 2013 the Board remanded the matter for additional development, including provision to the Veteran of VA examinations. Remand for compliance with the Board's May 2013 directives is needed. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its May 2013 remand the Board instructed that the Veteran be accorded a VA examination with respect to the issues on appeal. Although the Veteran was scheduled for VA examinations, he has provided good cause for his failure to report, including failure to receive notice of the VA examinations, his current incarceration, homelessness and relocation to care for his mother. As such, this matter must be remanded for further development. In reaching this conclusion, the Board is cognizant that, at last report, the Veteran was incarcerated. The Board points out, however, that the United States Court of Appeals for Veterans Claims (Court) has long held that incarcerated veterans are entitled to the same care and consideration given to their fellow veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)). Further, 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." Id. As such, on remand, the RO should determine whether the Veteran continues to be incarcerated. Thereafter, the RO must either afford him formal VA examinations, or if that is not possible, coordinate efforts with the correctional facility to accommodate the Veteran by arranging for the examinations to be conducted at the correctional facility. On remand a request should be made for all pertinent extant treatment records. If the Veteran remains incarcerated and if it is not possible to have him examined at the prison facility, depending on when he is scheduled to be released, in light of Bolton and Wood, a VA examiner should review the Veteran's medical records and provide opinions based on the evidence of record. Accordingly, the case is REMANDED for the following action: 1. Associate any pertinent, outstanding records with the claims folder. This must include all outstanding VA records, including any outstanding records of his participation in VA's vocational rehabilitation program. Also associate any pertinent records of the Veteran's treatment at the North Kern State Prison or at any other similar institution. Thereafter, send a letter to the Veteran requesting that he identify the approximate dates of treatment for his back, hip, and psychiatric complaints and the respective providers of that treatment. Then, associate with the claims file, either physically or electronically, any pertinent treatment records (including prison medical records) identified by the Veteran, following the receipt of any necessary authorizations from the Veteran. If no records are found, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of his back and hip problems during and since service, as well as first-hand knowledge of the severity of his mental (depression and anxiety) disorder, to include its impact on the Veteran's activities of daily living and social and occupational functioning. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After completion of steps 1 and 2, schedule the Veteran for an appropriate VA examination to determine the onset and etiology of his low back and bilateral hip complaints. The claims file must be made available to, and reviewed by, the examiner. All indicated tests should be done, and all findings reported in detail. The examiner must then opine as to whether it is at least as likely as not that any current low back disorder, if found, and any current hip disorder, if found, a) began during active duty service or in the year after the Veteran's Sept 1985 separation from service; b) is related to some incident of service; c) is secondary to (caused or aggravated by) the Veteran's disabilities, to include the aggregate impact of those conditions. In formulating the requested opinions the examiner must acknowledge and discuss the Veteran's report as to the onset of his symptoms. A complete rationale for all opinions should be provided. 4. If the Veteran remains incarcerated and it is not possible to afford him a VA examination regarding his claims for service connection for a low back disorder and a bilateral hip disorder, contact the correctional facility and request that a physician at that institution physically examine the Veteran's back and hips. All indicated tests (including x-rays, if deemed warranted) should be done, and all medical disorders identified. The agency of original jurisdiction should arrange for the Veteran's claims file to be reviewed by that physician. After his or her review, the physician should opine as to whether a) it is at least as likely as not that a current low back disorder began during active duty service or within one year of the Veteran's September 1985 separation from service; b) it is at least as likely as not that a current hip disorder, if found, began during active duty service or within one year of the Veteran's September 1985 separation from service; c) it is at least as likely as not that a current low back disorder, if found, is related to the Veteran's bilateral hallux valgus and/or bilateral knee conditions; and d) it is at least as likely as not that a current hip disorder, if found, is related to the Veteran's bilateral hallux valgus and/or bilateral knee conditions; to include any associated gait and/or postural impairment. 5. If the veteran remains incarcerated and a physician at the correctional facility is unwilling or unable to perform the requested examination of the Veteran's low back and hips, arrange for the Veteran's claims file to be reviewed by an appropriate VA examiner. After his or her review, the examiner should opine as to whether it is at least as likely as not that a current low back disorder, and at least as likely as not that a current hip disorder, began during active duty service or within one year of the Veteran's September 1985 separation from service; or is secondary to (caused or aggravated by) the Veteran's service-connected disabilities. 6. Schedule the Veteran for an appropriate VA examination to ascertain the nature, extent and severity of his psychiatric disability. The claims file should be made available to and reviewed by the examiner. All indicated tests should be done, and all findings, and the impact of his depression with anxiety condition on his activities of daily living and social and occupational functioning should be described in detail. 7. If the Veteran remains incarcerated and it is not possible to afford him a VA examination, contact the correctional facility and request that the Veteran be accorded a psychological evaluation at that facility to ascertain the nature, extent and severity of his psychiatric disability. The agency of original jurisdiction should arrange for the Veteran's claims file to be reviewed by the facility's examiner. All indicated tests should be done, and all findings reported in detail. Specifically, a narrative report that identifies the Veteran's symptoms and the impact of his psychiatric disability on his activities of daily living and social and occupational functioning. 8. If the Veteran remains incarcerated and cannot be accorded a psychological evaluation at the correctional facility, arrange for the Veteran's claims file to be reviewed by an appropriate VA examiner for an assessment of the severity of his psychiatric disability. A narrative report that identifies the Veteran's symptoms; and the impact of his psychiatric disability on his activities of daily living and social and occupational functioning is needed. 9. Then re-adjudicate the appeal. If any of these benefits sought is not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case and then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).