Citation Nr: 18160935 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-07 887 DATE: December 28, 2018 REMANDED Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for a sleep disorder is remanded. Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for chronic fatigue is remanded. Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for a hernia is remanded. Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for dermatitis is remanded. Service connection for a low back disability is remanded. Service connection for osteoarthritis is remanded. Service connection for osteoporosis is remanded. Service connection for a left shoulder disability is remanded. Service connection for a right shoulder disability is remanded. Service connection for a left foot disability is remanded. Service connection for a right foot disability is remanded. Service connection for irritable bowel syndrome (IBS) is remanded. Service connection for posttraumatic stress disorder (PTSD) is remanded. Service connection for an acquired psychiatric disorder other than PTSD, claimed as depression, anxiety, and paranoia is remanded. REASONS FOR REMAND The Veteran had active service from May 1988 to October 1988 and June 1991 to November 1991. This matter is on appeal from October 2014 and April 2015 rating decisions. The Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and paranoia. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a veteran’s claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope). The Board notes that in December 2014, within a year of the RO’s denial of service connection for PTSD, depression, anxiety disorder, back disability, osteoarthritis, osteoporosis, left shoulder disability, right shoulder disability, left foot disability, and right foot disability, as well as confirmation and continuation of the denial of the claim of service connection for a sleep disorder, chronic fatigue, dermatitis, and hernia, the Veteran filed a notice of disagreement specifically disagreeing with this determination. A March 2015 VA letter acknowledged the disagreement with the October 2014 decision. An April 2015 rating decision addressed some issues that were appealed, as well as some additional issues. The Veteran then filed an October 2015 Notice of Disagreement with the April 2015 rating decision. In June 2016, the RO sent the Veteran a letter informing him the December 2014 Notice of Disagreement was incomplete and provided him a VA Form 21-0958, Notice of Disagreement, to complete, sign, and return within a year of the date of the October 2014 decision or within 60 days from the date of the June 2016 notice. In August 2016, within 60 days of the June 2016 notice, the Veteran completed, signed, and returned the Notice of Disagreement; however, later in August 2016 the RO sent the Veteran a letter notifying the Veteran that they could not accept his Notice of Disagreement for the issues of a sleep disorder, chronic fatigue, and depression because the time limit to file a Notice of Disagreement with the April 2015 rating decision had passed. The Veteran was correcting the December 2014 Notice of Disagreement that appealed the October 2014 rating decision, and was not filing an untimely Notice of Disagreement with the April 2015 rating decision. As a Notice of Disagreement was filed but no Statement of the Case has been issued, a remand for issuance of a Statement of the Case is warranted. See 38 C.F.R. § 19.9(c). The record reflects that the RO’s June 2016 notification letter regarding the incomplete Notice of Disagreement and all subsequent notifications sent to the Veteran have been returned as undeliverable. Correspondences returned in August 2016, July 2018, September 2018, and November 2018 noted that the mail was refused because a correct name and federal registration number was needed. The Board notes that the Veteran’s federal registration number is available on the September 2014, December 2014, October 2015, June 2016, August 2016 and February 2017 envelopes received from the Veteran. The Veteran’s incarceration does not negate VA’s statutory obligation to assist in the development of his claims. 38 U.S.C. § 5103A. Further, the United States Court of Appeals for Veterans’ Claims (the Court) has indicated that even though incarcerated, a Veteran should be accorded the same assistance as his fellow, non-incarcerated Veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995). As the Veteran’s federal registration number is available, his address must be updated to include his federal registration number, and all returned mail must be re-sent to the Veteran. Evidence indicates that there may be outstanding relevant VA treatment records. On an authorization for release of information, the Veteran reported that he was treated at a VA Medical Center from 1992 to 2008. The earliest VA treatment records in the claims file are dated from 2003. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Additionally, in correspondence dated in May 2013 the Veteran reported that he was receiving medical treatment at the Talladega, Alabama, federal penitentiary, and in September 2014 he provided authorization for VA to obtain copies of those records. The prison records on file appear to be incomplete and out-of-date and there is no indication of any subsequent VA effort to obtain the records. Therefore, the Board finds that further development is required to obtain pertinent available records. The Board also notes that VA efforts to schedule the Veteran for examinations were unsuccessful due to the Veteran’s incarceration. Appropriate VA efforts must be taken to verify the Veteran’s federal incarceration release date and to determine if it is possible to schedule an examination, either VA or fee-basis, upon release. However, if it determined that examinations are not possible an examiner should be requested to review the record and to address whether the requested opinions can be provided based upon the available evidence without additional physical examination. Finally, the Veteran’s representative, California Department of Veterans Affairs, was not provided with the opportunity to submit a Statement of Accredited Representative in Appealed Case (VA Form 646) prior to the Board’s review of the case. However, the Board finds no prejudice to the Veteran in proceeding with the issuance of this remand because, following the completion of the requested development, his representative will be given an opportunity to submit additional argument prior to the case’s return to the Board. The matters are REMANDED for the following action: 1. Update the Veteran’s address in the appropriate VA record system to include his federal registration number. Then, resend to the Veteran any correspondence that was returned as undeliverable. 2. Undertake all appropriate steps to issue the Veteran (and his representative) an SOC addressing the issues of entitlement to service connection an acquired psychiatric disorder, back disability, osteoarthritis, osteoporosis, left shoulder disability, right shoulder disability, sleep disorder, chronic fatigue, dermatitis, and hernia. Inform the Veteran and his representative that a timely substantive appeal must be filed to perfect the appeal. Thereafter, if the Veteran files a timely substantive appeal, undertake any indicated development and return this matter to the Board in compliance with requisite appellate procedures 3. Ask the Veteran to provide the names and addresses of all medical care providers, including while incarcerated, who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable or do not exist, the claims file should be annotated to reflect such and the Veteran notified of such. 4. Appropriate VA efforts must be taken to verify the Veteran’s federal incarceration release date and to determine if it is possible to schedule an examination, either VA or fee-basis, upon release. If it is determined that examination(s) are possible, the claims file must be made available to the examiner(s) for review in connection with the examination(s). However, if it determined that examination(s) are not possible an examiner(s) should be requested to review the record and to address whether the requested opinions can be provided based upon the available evidence without additional physical examination. For all issues of service connection that warrant an examination, the examiner(s) should clearly report all disabilities found. If signs or symptoms of the claimed disorders are objectively demonstrated, but such signs or symptoms cannot be attributed to a known medical diagnosis, the appropriate examiner should so state. As to each of the claimed disabilities which are found on examination, the examiner should offer an opinion as to whether such disability is at least as likely as not (a 50% or higher degree of probability) causally related to service. A rationale should be furnished for all opinions. 5. After completing the above development, request that the Veteran’s representative provide a VA Form 646 or its equivalent addressing the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel