Citation Nr: 18154063 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-36 717 DATE: November 29, 2018 REMANDED 1. The appeal to reopen a claim of service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for a disability manifested by bone and joint pain is remanded. 3. Entitlement to service connection for migraine headaches is remanded. 4. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from December 1967 to November 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision. The Veteran’s VA Form 9 limited his appeal to the issues listed above. Initially it is noted that the Veteran is incarcerated, and is not expected to be released in the near future. 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 those individuals are entitled to the same care and consideration given to non-incarcerated veterans. Wood v. Derwinski, 1 Vet. App. 190 (1991). 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 Bolton v. Brown, 8 Vet. App. 185, 191, (1995) (discussing 38 U.S.C. § 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 on behalf of VA; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. The Veteran is incarcerated with the Texas Department of Criminal Justice. His medical records from that facility have not been updated since July 2013. Up to date treatment records may contain pertinent information and should be secured to ensure the proper adjudication of these claims. 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. Under certain circumstances further development is required prior to appellate consideration of whether new and material evidence has been received to reopen a claim. This case presents such circumstances. The Veteran has alleged that prior to his incarceration he was receiving treatment for hearing loss at the Waco VAMC. Outstanding records of such VA treatment may contain pertinent information (as alleged), are constructively of record, and must be secured. If records received show or suggest that the Veteran has a hearing loss disability, a medical advisory addressing opinion whether such disability is etiologically related to his service would be necessary. 2. Service connection for a disability manifested by bone and joint pain. The Veteran contends that he has a disability manifested by bone and joint pain that was incurred in service. A March 1990 report of medical history, notes his report of swollen or painful joints. Considering the notation in service and the Veteran’s allegations of a current disability (manifestations of which he is competent to report), an examination to determine the nature and likely etiology of any such disability is necessary. 3. Service connection for migraine headaches. The Veteran contends that he suffers from headaches incurred in service. In a March 1990 report of medical history, he reported frequent or severe headaches. On January 1998 Persian Gulf examination complaints of headaches occurring approximately two to three times per week since 1995 were noted; the impression was tension headaches. An examination to determine the nature and likely etiology of any headache disorder is necessary. 4. Service connection for a psychiatric disability, to include PTSD. The Veteran contends that he suffers from a psychiatric disability related to service. The record does not show a diagnosis of PTSD, but shows that he has received a diagnosis of depression. The record does not identify the etiology of the Veteran’s depression. In a March 1990 report of medical history, he reported frequent trouble sleeping. Following service, depression was first documented on a January 1998 Persian Gulf examination that noted problems with nightmares occurring twice a week. Under such circumstances, an examination to ascertain the nature and etiology of the Veteran’s psychiatric disability is necessary. The matters are REMANDED for the following: 1. The AOJ should secure for the record complete up to date records of the Veteran’s medical and psychiatric treatment from the Texas Department of Criminal Justice, as well as clinical records of the evaluations and treatment he reported he received for bilateral hearing loss, bone and joint pain, headaches, and psychiatric problems at the Waco VAMC. 2. Thereafter (taking all appropriate measures consistent with VA’s guidelines of developing claims for incarcerated veterans), contact the Veteran’s correctional facility or state corrections authorities requesting that the examinations described below, as feasible. Associate with the record documentation of all attempts to schedule the examinations sought, as well as all communications with corrections personnel. 3. If, and only if, evidence received shows or suggests existence of a current hearing loss disability, arrange for an audiological examination of the Veteran (with audiometric studies) to confirm he has a bilateral hearing loss disability and ascertain its likely etiology. Upon review of the record (to include the Veteran’s STRs noting a left ear surgical procedure in 1968) and interview of the Veteran, the consulting provider should respond to the following: (a.) Does the Veteran have a hearing loss disability (as defined in 38 C.F.R. § 3.385) in either (or both) ear(s)? (b.) Identify the likely etiology for any hearing loss disability found. Specifically, is it at least as likely as not (a 50% or better probability) that it is etiologically related to the Veteran’s service, to include as due to exposure to noise, or as related to a surgical procedure, therein? All opinions must include rationale. 4. Arrange for an orthopedic examination of the Veteran to determine the likely etiology of any current disability manifested by bone and joint pain. Upon review of the record (to specifically include the Veteran’s STRs noting complaints of swollen or painful joints near the time of separation) the consulting provider should respond to the following: (a.) Identify (by diagnosis) any disability manifested by bone and joint pain found. (b.) Identify the likely etiology for any such disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it is etiologically related to the Veteran’s service (to include the complaints noted prior to separation)? All opinions must include rationale. 5. Arrange for an examination of the Veteran by an appropriate clinician to determine the presence, nature and etiology of any current headache disability. Upon review of the record (to specifically include the Veteran’s STRs noting his complaints of headaches in service) the consulting provider should respond to the following: Identify the nature (by diagnosis) and likely etiology for the Veteran’s current headache disability. Specifically, is it at least as likely as not (a 50% or better probability) that any headache disability diagnosed is etiologically related to his service? All opinions must include rationale. 6. Arrange for a psychiatric examination of the Veteran to ascertain whether he has a chronic acquired psychiatric disability, and if so its nature and likely etiology. (a.) If the Veteran’s correctional facility authorizes an examination by a qualified prison medical professional, then the RO should provide the examiner with the appropriate Disability Benefits Questionnaire form to be completed during the examination. Copies of relevant records from the Veteran’s claims file should be made available to the examiner for review (so that the opinion is an informed one). (b.) If the correctional facility is unwilling to conduct an examination, as described above, ascertain whether the correctional facility will authorize an examination by a VA examiner either at a VA facility or at the correctional facility. If so, arrange for such examination. (c.) The examiner is asked to offer opinions that respond to the following: i. Identify each psychiatric disability found (by diagnosis) ii. Identify the likely etiology of each psychiatric disability diagnosed. Is it at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability diagnosed, began during, or is otherwise etiologically related to, the Veteran’s military service? iii. If not, to the extent possible, identify the likely etiology for each diagnosed psychiatric disability considered more likely. All opinions must include rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel