Citation Nr: 1808115 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-24 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tuberculosis. 2. Entitlement to an evaluation in excess of 30 percent for coronary artery disease (CAD). 3. Entitlement to a compensable evaluation for hemorrhoids. 4. Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the dorsal spine. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Air Force from September 1959 to January 1967 and November 1972 to April 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2013, October 2013 and December 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran timely perfected his Substantive Appeals to the Board. In his November 2016 Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge in Washington, DC. In September 2017, the Veteran's representative submitted a statement reporting that the Veteran wished to withdraw his hearing request. As such, the Board deems the Veteran's request for a hearing withdrawn. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, remand is necessary to properly adjudicate the claims on appeal. The Veteran is currently incarcerated. He was scheduled for VA examinations to assess his disabilities on appeal in October and November 2014. The Veteran did not report to those examinations, and the RO did not find good cause for his failure to report. Evidence of record indicates that the Veteran refused transport to the examinations. In August 2013, however, the Veteran requested to have the examinations conducted in the prison by prison medical staff. He reported that he was not refusing to be transported, but that transport caused a great physical burden on him given his age and medical conditions. Again, in October 2014, the Veteran wrote the RO to explain that he was physically unable to be transported. Each time he was transported, his health deteriorated. In a prison transport, he is required to be handcuffed to another person, and is not able to use the restroom when needed. Due to the conditions of transport, he requested that the examinations be conducted by prison medical staff in the facility. A similar statement was sent later that month, and then again in November 2014 and July 2015. 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)). The VA Manual also contains provisions regarding the special considerations involved in scheduling examinations for incarcerated veterans. As an alternative to transport to a VA facility, the Manual allows for examinations to be conducted by prison staff, VHA personnel at the prison or by fee-basis providers contracted by VHA at the prison. See M21-1, Part III.iv.3.A.9.d. The Veteran's concerns regarding his health and the conditions of a prison transport warrant another attempt to schedule examinations for the Veteran. The Veteran is reminded, however, that his cooperation is essential to the development of any claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Absent a showing of good cause, a Veteran's refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination. See 38 C.F.R. § 3.655; VAOPGCPREC 4-91 (Feb. 13, 1991). Although a Veteran is of course "free to refuse to report for a scheduled VA examination [,] . . . the consequences of that refusal may result in the adjudication of the matter based on the evidence of record." Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005) (citing 38 C.F.R. § 3.655(a)). In other words, veterans who fail to cooperate during VA examinations "subject them [selves] to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Kowalski, 19 Vet. App. at 181. If examinations may only be arranged utilizing transport to a VA facility, and the prison will not authorize examinations in-house, the Veteran must either agree to the transport or risk adverse adjudication based on an incomplete record. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and obtain a release in order to request all outstanding medical records from the Veteran's prison regarding his disabilities on appeal. Make all reasonable attempts to obtain the treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Attempt to obtain, through all indicated and appropriate sources, any outstanding service treatment records, to include any and all hospitalization and treatment reports from his service in Thailand and Alaska. All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the Veteran must be notified. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the etiology of his claimed tuberculosis. The entire claims file must be reviewed, including a copy of this remand. Review of these documents should be noted in the claims file. The examiner must consider the Veteran's lay reports of diagnosis in-service, as well as service treatment records indicating positive PPD testing. Once a review of the file has been conducted, the examiner must opine as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's tuberculosis began during active service, is related to an incident of service, or began within one year after discharge from active service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Once the aforementioned evidentiary development is complete, schedule the Veteran for VA examination to assess the current severity of his service-connected coronary artery disease. The entire claims file must be reviewed, including a copy of this remand. Review of these documents should be noted in the claims file. The examiner should perform any and all studies, tests, and evaluations deemed necessary. The examiner must address the Veteran's lay reports of observable symptomatology. The examiner should opine as to the following: (a) Describe the current severity of the Veteran's coronary artery disease; (b) List any and all episodes of previous congestive heart failure within the past year; (c) Note any and all symptoms associated with stress testing. The examination reports should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Once the aforementioned evidentiary development is complete, schedule the Veteran for VA examination to assess the current severity of his service-connected hemorrhoids. The entire claims file must be reviewed, including a copy of this remand. Review of these documents should be noted in the claims file. The examiner should perform any and all studies, tests, and evaluations deemed necessary. The examiner must address the Veteran's lay reports of observable symptomatology. The examiner should opine as to the following: (a) Describe the current severity of the Veteran's hemorrhoids; (b) Indicate specifically if there is persistent bleeding with secondary anemia or fissures; (c) Indicate specifically if the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, or evince frequent recurrences. The examination reports should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 6. Once the aforementioned evidentiary development is complete, schedule the Veteran for VA examination to assess the current severity of his service-connected spine disability. The entire claims file must be reviewed, including a copy of this remand. Review of these documents should be noted in the claims file. The examiner should perform any and all studies, tests, and evaluations deemed necessary. The examiner must address the Veteran's lay reports of observable symptomatology. The examiner should opine as to the following: (a) Describe the current severity of the Veteran's degenerative arthritis of the spine; (b) Measure active and passive ranges of motion, as well as in weight-bearing and nonweight-bearing; (c) Document any and all functional loss due to pain on use, weakness, repetitive motion, flare ups, fatigue, and incoordination. Estimate, if possible, additional loss of range of motion due to these factors. The examiner should consider the Veteran's reports of additional loss due to these factors. If such additional loss cannot be estimated without resorting to mere speculation, the examiner must explain why, and provide the evidence on which he or she based that conclusion. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 7. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ B. MULLINS 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 of your appeal. 38 C.F.R. § 20.1100(b) (2017).