Citation Nr: 18158657 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 07-26 946 DATE: December 18, 2018 REMANDED Entitlement to service connection for a psychiatric disorder (claimed as a result of alcohol abuse) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1979 to August 1981. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a May 2006 rating decision. In April 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Agency of Original Jurisdiction (AOJ). A transcript of the hearing has been associated with the record. In August 2012, May 2013, and March 2016, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. However, as will be discussed below, the Board must remand this case again because the file does not reflect substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In the March 2016 remand, the Bord directed the AOJ to obtain the Veteran’s current mailing address. If it was determined that the Veteran was incarcerated, the AOJ was directed to follow VA protocol for scheduling examinations of incarcerated veterans. The record shows that the Veteran was incarcerated in August 2017. Thereafter, the AOJ requested VA examinations for the Veteran in May 2018 and August 2018. Both VA examination requests were cancelled because the Veteran was unavailable and at the request of the site or VA. However, as discussed in the March 2016 remand, the United States Court of Appeals for Veterans Claims (Court) has specifically addressed VA’s duty to assist incarcerated veterans in cases where a VA examination is warranted. Specifically, the Court has cautioned “those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans.” See Bolton v. Brown, 8 Vet. App. 185 (1995) (citing Wood v. Derwinski, 1 Vet. App. 190 (1991)). In Bolton, the Court remanded a case where the RO claimed an inability to get a fee-basis physician to conduct an examination at a correctional facility. In that case, further efforts were deemed necessary to attempt to examine that veteran. In the case of VA medical examinations, 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. § 5711. However, 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. See Bolton, 8 Vet. App. at 191. Other than the VA examination requests in May 2018 and August 2018, there are no other records documenting any additional attempts made or measures taken by the AOJ to afford the Veteran an examination. Indeed, it does not appear that the AOJ ever contacted or corresponded with the correctional facility to determine whether the medical personnel at the correctional facility could conduct an examination in accordance with VA examination worksheets or if a VA or fee-basis examiner could conduct the examination at the correctional facility. Thus, the Board finds that, in order to comply fully with the duty to assist the Veteran in the development of facts pertinent to his claim, the AOJ should take further steps to determine whether an examination can be scheduled. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. If the Veteran is currently incarcerated, the AOJ should take all reasonable measures to schedule the Veteran for the examination requested and confer with the prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination. 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. The AOJ should determine which option is the most feasible and document all attempts taken to schedule the Veteran for a VA examination related to his claim. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service, other than alcohol abuse. The examiner should also specifically address whether the Veteran’s substance abuse problems in service were indicative of a psychiatric disorder at that time. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel