Citation Nr: 1636161 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 10-27 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a disability claimed as alcohol poisoning. 3. Entitlement to service connection for traumatic brain injury (TBI). 4. Entitlement to service connection for an acquired psychiatric disorder, including depression, including as due to alcohol poisoning, TBI, and a bilateral knee disability. REPRESENTATION Appellant represented by: Navy Mutual Aid Association ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from December 1972 to May 1975. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2013 and April 2015, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Some of the development requested by the Board in April 2015 was completed. Notably, the RO was requested to ask the Veteran to provide authorization for VA to obtain his prison medical records dated prior to December 2001. A November 2015 letter to him was returned by the United States Post Office marked "unable to forward-return to sender" (11/17/15 VBMS Returned Mail). A copy of the letter was sent to his representative. In December 2015, the RO resent the letter to the Veteran's current prison address (12/1/15 VBMS Prison Convict Information; 12/1/15 VBMS Correspondence). He did not respond to the RO's letter. The Board also remanded the Veteran's case to assist him to undergo VA examination, as he is incarcerated. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The Board directed the RO to determine if the Veteran may be escorted to a VA medical facility for examination or if an examination at the prison was feasible. If that was not possible, the Board directed that the Veteran may be examined at the prison by Veterans Health Administration (VHA) personnel, prison medical providers at VA expense, or fee-basis providers contracted by VHA. The most feasible opinion was to be determined. The Veteran was scheduled for VA examinations in February 2016. On February 1, 2016, the VA medical center (VAMC) in Houston advised the RO that the examination was cancelled because the Texas Department of Corrections did not provide wheelchair vans (2/1/16 VBMS VAMC Other Outputs/Reports). The examination was rescheduled later in the month. On February 24, 2016, the Houston VAMC advised that the Texas Department of Corrections did not provide transportation to inmates who needed wheelchairs and that none of the VAMC providers go to the prison facilities due to the security risk (2/24/16 VBMS VAMC Other Outputs/Reports). The RO asked if it was possible for the Houston VAMC to coordinate with the Texas Department of Corrections to have one of its physicians perform the examination. The Houston VAMC advised that Texas Department of Corrections does not conduct VA examinations. There is no indication that consideration was given to having the Veteran examined by fee-basis providers, as directed in the 3rd directive by the Board in 2015. In the body, the Board noted that clinics must document that they have made multiple attempts and exhausted all possible avenues for obtaining access to the incarcerated Veteran for the examination. The Board, along these lines, also stated in the directive that if action was not possible, then an explanation should be associated with the claims file. In light of this, the Board cannot find substantial compliance with its prior remand directive. The Board observes that the December 2010 supplemental statement of the case notes review of medical records from the Texas Department of Criminal Justice dated from December 19, 2001 to July 19, 2010. The Board is unable to locate prison medical records dated prior to November 2002 in the electronic file. The AOJ should ensure that these records are associated with the electronic file. Accordingly, the case is REMANDED for the following actions: 1. Ensure that all medical records from the Texas Department of Criminal Justice, dated from December 19, 2001 to July 19, 2010, are associated with the Veteran's electronic claims file to particularly include those dated prior to November 2002. 2. Confer with prison authorities and the Houston VAMC to determine if the Veteran may be examined at the prison by fee-basis providers contracted by the VHA. If, based on previous requests or circumstances, action is not possible, a written explanation of this fact should be associated with the claims by the AOJ. 3. Thereafter, schedule the Veteran for VA examinations to determine nature and etiology of his bilateral knee disability and acquired psychiatric disorder. The claims file must be provided to the examiner for review. All indicated tests and studies should be performed. The examiners should review the claims file in conjunction with the examinations. a. Does the Veteran have any bilateral knee disability (any disability diagnosed since 2009), including degenerative joint disease or another knee disorder? i. If so, for each current knee disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's current (present at any time since 2009) knee disabilities, in whole or part, had their onset in service, or are otherwise the result of a disease or injury in service? If arthritis (degenerative joint disease) is diagnosed, the examiner should indicate whether it was manifested within one year after the Veteran's discharge from active duty. ii. The examiner should provide reasons for all opinions. iii. The Veteran is competent to report symptoms and observable history. iv. The absence of evidence of treatment for knee symptoms in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. v. If the examiner is unable to provide an opinion without resort to speculation, the examiner should explain whether this is due to the limits of medical knowledge in general, the limits of the examiner's medical knowledge, or there is additional evidence that would permit the needed opinion to be provided. b. Does the Veteran have an acquired psychiatric disability (any disability diagnosed since 2009), including depression or another psychiatric disorder? i. If so, for each current psychiatric disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's current (present at any time since 2009) psychiatric disabilities, in whole or part, had their onset in service, or are otherwise the result of a disease or injury in service. If a psychosis is diagnosed, the examiner should state if it was manifest within a year of the Veteran's discharge from active service. ii. The examiner should provide reasons for all opinions. iii. The Veteran is competent to report symptoms and observable history. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. iv. The absence of evidence of treatment for psychiatric symptoms in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. v. If the examiner is unable to provide an opinion without resort to speculation, the examiner should explain whether this is due to the limits of medical knowledge in general, the limits of the examiner's medical knowledge, or there is additional evidence that would permit the needed opinion to be provided. 4. Readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ PAUL SORISIO 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. 38 C.F.R. § 20.1100(b) (2015).