Citation Nr: 1605850 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 10-06 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected degenerative joint disease (DJD) of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 2003 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that in his February 2010 Appeal to the Board of Veterans' Appeals (VA Form 9), the Veteran requested a Board hearing at a local VA office. However, as the claims file reflects, the Veteran was subsequently incarcerated and remains incarcerated at a correctional facility in Oklahoma. In September, October, and December 2015, the Veteran and his representative were sent letters advising them that because the Veteran could not travel to a VA facility, his request for a hearing could not be accommodated at this time. They were advised that under 38 C.F.R. § 20.700, the Veteran could: 1) submit a written statement to the Board; 2) have his representative submit a statement to the Board; 3) have the representative move to appear alone before the Board in order to present argument on the Veteran' s behalf. The letter also indicated that the Veteran's appeal would be held in abeyance for 30 days to allow for the submission of any additional evidence or argument; and if no response is received, then the Veteran's appeal would be considered in docket order. To this date, the Board has received no response from the Veteran or his representative. The Board has reviewed the Veteran's electronic claims file maintained in the Veterans Benefits Management System (VBMS) and the electronic records in the Virtual VA system to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is claiming service connection for a right knee disability, including secondary to his service-connected DJD of the left knee. Service treatment records from July 2007 note the Veteran having a past history of right knee problems. On his July 2007 Report of Medical History at separation, the Veteran indicated that his right knee gave out" a month ago. The examiner's summary notes that the Veteran's knees were sore and that he strained his right knee doing "PT Basketball." VA treatment records from August 2009 reveal that the Veteran was treated for complaints of right knee pain, which he dated back to his time in the military. Subsequent VA treatment records also note complaints of right knee pain. He was assessed as having probable mild chondromalacia of patella, with possible abnormal tracking. In September 2009, he was prescribed a knee brace for his right knee. A VA joints examination was conducted in December 2010, however the examiner only evaluated the Veteran's left knee. In light of the above, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee disability. As indicated above, the Veteran is currently incarcerated in a correctional facility in Oklahoma. In a June 2013 deferred rating decision, a decision review officer indicated that development was needed, including finding out what facility the Veteran was incarcerated in because a VA examination was needed with a medical opinion regarding the Veteran's claim for service connection for a right knee disability. While the record reflects that the RO was able to determine the Veteran's location, there is no indication that the scheduling of a VA examination was attempted. 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. 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 accordance with VA's Adjudication Procedure Manual, the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator should 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 RO should determine whether 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. Additionally, as the most recent treatment records in the claims file are dated in August 2011, the RO should request that the Veteran provide an appropriate authorization for any medical records pertaining to treatment for his knee from the facility in which he is incarcerated. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps, to include securing any necessary release from the Veteran, to obtain any medical treatment records from the Oklahoma Department of Corrections, from 2012 to the present. All efforts to obtain these records should be documented in the claims file. 2. After associating any acquired records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disability. The RO and/or local VHA medical examination coordinator should confer with prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination. If that is not possible, determine whether the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense (including completion of a VA examination worksheet); or (3) fee-basis providers contracted by VHA. All attempts to fulfill these requests should be documented in the claims file. a) The examiner should identify all current disabilities of the right knee. b) For each condition diagnosed, the examiner must opine as to whether any such condition is at least as likely as not (50 percent probability or greater) causally related to the Veteran's military service; or was b) caused or aggravated (permanently increased in severity) by the Veteran's service-connected DJD of the left knee. The claims file should be made available for review, and the examination report should reflect that such review occurred. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given in his or her examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completion of the above requested development, and any other development deemed necessary, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC), and afford them the opportunity to respond before the claims file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ MILO H. HAWLEY 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).