Citation Nr: 1800946 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-44 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a separate compensable rating for right lower extremity neurological manifestations associated with service-connected post-operative herniated nucleus pulposus at L4-L5, laminectomy, and two disc excisions (hereinafter referred to as low back disability). 2. Entitlement to a separate compensable rating for left lower extremity neurological manifestations associated with service-connected low back disability. 3. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to September 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified before the undersigned Veterans Law Judge in a November 2012 video conference hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the Board's February 2014 remand, it was determined that a new VA examination was needed in light of evidence of possible neurologic abnormalities in the lower extremities associated with the Veteran's service-connected low back disability. Although the Veteran was subsequently scheduled for VA examinations in August 2016 and February 2017, he failed to report to these examinations. However, a review of the record reflects that the Veteran has been incarcerated throughout this time. See March 2017 Report of General Information (noting incarceration since July 2013 at the Marshall County Correctional Facility); June 2017 VA 27-0820e, Report of Incarceration (noting incarceration after felony conviction in March 2013 and status as "still incarcerated"); June 2017 Mississippi Department of Corrections Inmate Details (reflecting a 15-year sentence length and providing his current location at the Marshall County Correctional Facility). In September 2011, VA issued Fast Letter 11-22, clarifying that its duty to assist includes efforts to provide examinations and obtain medical records for incarcerated veterans. This Fast Letter has now been rescinded due to its incorporation in the M21-1 Adjudication Procedures. See, e.g., M21-1, III.iv.3.F.2.d (Examinations of Incarcerated Veterans). In pertinent part, the M21-1 confirms that an incarcerated veteran is entitled to a compensation examination, and "the RO and/or the local Veterans Health Administration (VHA) Medical Examination Coordinator must confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel, or examined at the prison by VHA personnel, or prison medical providers at VA expense, or fee-basis providers contracted by VHA." Id. VA is required to document all efforts to schedule and conduct the examination. Id. Additionally, VA also has a duty to obtain records from the incarcerating facility with any necessary assistance needed from the Veteran. Because VA has not complied with procedures for ensuring the duty to assist has been met in the case of this incarcerated Veteran, a remand is necessary to ensure due process. Additionally, after accomplishing the above and pursuant to the previous remand, "if the Veteran fails to meet the schedular requirements under 38 C.F.R. § 4.16(a) for the award of TDIU benefits, refer the Veteran's claim for such benefits to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating under 38 C.F.R. § 4.16(b)." Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims file any pre-incarceration VA treatment records relevant to the appellate issues dated since April 2012. 2. With any needed assistance from the Veteran, obtain treatment records from the Mississippi Department of Corrections. 3. Follow M21-1 procedures for requested examinations in the case of incarcerated veterans, to include working with VHA personnel and conferring with prison authorities. All efforts to schedule and conduct the examination must be duly documented in the electronic record. The reports of any examination accomplished should be associated with the claims file. 4. If, and only if, the Veteran fails to meet the schedular requirements under 38 C.F.R. § 4.16(a) for the award of TDIU benefits, refer the Veteran's claim for such benefits to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating under 38 C.F.R. § 4.16(b). 5. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. 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). 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 U.S. 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). _________________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the U.S. 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) (2017).