Citation Nr: 1617201 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 10-08 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 20 percent for a left ankle disability, to include residuals of a non-displaced fracture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active duty from November 1980 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This matter was previously before the Board in December 2014, when it was remanded for further development. In his March 2010 substantive appeal to the Board (VA Form 9), the Veteran requested a Travel Board hearing before a Veterans Law Judge. However, in February 2011, he, via his representative, submitted a written statement withdrawing his request for a Board hearing. As such, the Board considers the hearing request to be withdrawn. 38 C.F.R. § 20.704(e) (2015). REMAND In December 2014, the Board remanded this claim for an evaluation of the Veteran's claimed increased rating for his left knee disability. An examination was scheduled for February 26, 2015, but the Veteran failed to appear. Evidence of record indicates that the Veteran became incarcerated in June 2014. He will be released in 2019 at the earliest. He did not claim that he did not receive notice of the examination. Instead, he claimed, through his representative, that he was unable to participate in the February 2015 VA examination due to "[c]irumstances witch (sic) were directly related to the actions of the correctional facility." The Veteran or his representative did not elaborate further, but it is assumed that the correctional facility did not release the Veteran for the VA examination, as he is serving his sentence for child molestation. VA has special procedures for handling the scheduling of VA examinations for incarcerated Veterans. 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 given to their fellow non-incarcerated Veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him or her 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 work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated Veterans. The manual calls for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether a 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. VBA Fast Letter 11-22 (Sept. 8, 2011) outlines how the compensation clinics must document that they have made multiple attempts and exhausted all possible avenues for obtaining access to the incarcerated Veteran for the examination. As such, the Veteran should be afforded another change at a VA examination while he is incarcerated. The VA examination should determine all manifestations of his left ankle disability, to include any neurological impairments. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his service-connected left ankle disability, including any associated neurological manifestations. The claims folder must be made available to, and be reviewed by, the examiner in conjunction with the examination, and that review must be noted on the examination report. All diagnostic testing deemed necessary should be conducted and the results reported in detail. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the below questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. The examiner should specifically opine as to: a) Describe the nature and severity of all manifestations of the Veteran's left ankle disability, to include range of motion studies. Note any range of motion loss which is specifically attributable to pain. Note any additional functional loss with repetition. Discuss whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare-ups. Note whether there is any less or more movement than is normal; weakened movement; excess fatigability; incoordination; and pain on movement (as well as swelling, deformity, and atrophy). Also, indicate whether the Veteran has any ankylosis of the ankle(s); and, if so, at what degree the ankle(s) is ankylosed. b) Determine whether the Veteran's left ankle disability results in any neurological manifestations. See Veteran's complaints of a "burning/charliehorse" type of pain, pain "radiating into the calf area," "tingling and numbness," and "[p]ain is below lateral malleolus with radiation around ankle joint." See May 20, 2006 and January 14, 2009 VA treatment records. c) Describe the functional impairment resulting from the Veteran's left ankle disability. 2. Then, readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case, allowing an appropriate period of time for response. Then, return the claim to the Board. 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals