Citation Nr: 1604496 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 13-02 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss disability. 2. Entitlement to service connection for left ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is currently incarcerated in the State of Florida. For the reasons discussed below, the Board finds that a remand is necessary in order to schedule the appropriate medical examinations to evaluate his claimed disabilities. The duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement because these individuals are entitled to the same care and consideration given to their fellow veterans. 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 38 U.S.C.A. § 5711 (West 2014). 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 worksheets; or, (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton, 8 Vet. App. at 191. In addition, the VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated veterans. The Manual calls for the 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.iv.3.A.11.d. In this case, the record reflects that VA audiological and joint examinations were scheduled for September 2010, prior to the initial adjudication of the Veteran's claims, and that the Veteran failed to report for these examinations. The Veteran subsequently explained that he was unable to attend these examinations because he was incarcerated. In April 2012, he requested that VA send a visiting doctor to evaluate him; no response from VA is of record. Upon review, the Board finds that VA has not complied with its duty to assist, as articulated in Bolden. The AOJ should therefore make additional attempts to schedule the appropriate medical examinations in accordance with the VA Adjudication Procedure Manual provisions discussed above. The Veteran is notified that it is his responsibility to report for the examinations scheduled in connection with this Remand at whatever location it is scheduled, and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. The AOJ should have the Veteran scheduled for VA examinations to determine the nature and likely etiology of his claimed left ankle and hearing loss disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After reviewing the entire record, the examiner/s should opine as to the following: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran has a left ankle disability that was incurred in or aggravated during service, or is otherwise related to service. Specifically discuss the in-service documentation of left ankle sprain, dated in May 1966. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran has a hearing loss disability that was incurred in or aggravated during service, or is otherwise related to service, to include in-service acoustic trauma. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. The Veteran is currently incarcerated at the South Florida Reception Center in Doral, Florida. Thus, the AOJ should take all necessary actions to: (1) arrange transportation of the Veteran to a VA facility for examination; or, (2) contact the correctional facility and have their medical personnel conduct an examination according to VA examination work sheets; or, (3) send a VA or fee-basis examiner to the correctional facility to conduct the examination. The AOJ should follow the procedures set out in M21-1MR, Part III.iv.3.A.11.d, including conferring with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel or examining the Veteran at the prison by VHA medical personnel, a prison medical provider at VA expense, or a fee-basis provider contracted by VHA. The AOJ should document all attempts to schedule the Veteran for his examinations in the claim file and include negative responses. If examinations cannot be obtained, send the claims file to a VA examiner for the requested medical opinions. 2. After completing all indicated development, the AOJ should readjudicate the claims remaining on appeal. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran a fully responsive Supplemental Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). _________________________________________________ H. N. SCHWARTZ 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) (2015).