Citation Nr: 1808306 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-22 081A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased evaluation for disc space narrowing of the lumbar spine rated as noncompensable prior to May 26, 2011, and as 10 percent disabling thereafter. 2. Entitlement to a compensable rating for scoliosis of the cervical spine. 3. Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 2003 to October 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in May 2011 and July 2012. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2014. A transcript is of record. The Board remanded the claims in May 2015 for additional development. At that time, the Veteran was represented by a private attorney, who withdrew representation prior to the claims being recertified to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded these claims in May 2015 in part to schedule the Veteran for several VA examinations. Evidence in the file indicates that shortly before the Board issued its decision, the Veteran was incarcerated at the New River Valley Regional Jail in Dublin, Virginia, where he remains incarcerated. Evidence in the file also indicates that the requested examinations were cancelled by the RO on April 17, 2017, but opened the following day. There is no indication that the examinations were completed and the November 2017 supplemental statement of the case indicates that "We attempted to schedule an examination for you at VAMC Salem on 4-18-17. However, since you are incarcerated, this exam could not be performed. Therefore, this exam could not be scheduled. Evidence expected from this exam which may have been material to the outcome of the claim could not be considered." The United States Court of Appeals for Veterans Claims has held that VA must tailor its assistance to the peculiar circumstances of obtaining examination of an incarcerated claimant. Bolton v. Brown, 8 Vet. App. 185 (1995). The Court indicated that alternative means to obtain examination of an incarcerated claimant include: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their personnel conduct an examination according to VA examination worksheets; or (3) sending a VA examiner to the correctional facility to conduct the examination. There is no indication from review of the claims folder that the RO took any action to schedule a VA examination pursuant to the alternate means outlined in Bolton. Treatment records from the Veteran's correctional facility should also be requested. 38 U.S.C.A. § 5103A(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete an appropriate release form so that records of medical treatment he has received while incarcerated can be obtained. After securing the release, the AOJ should request the identified records. If any requested records are unavailable, the Veteran should be notified of such. 2. If the Veteran remains incarcerated, contact the facility where the Veteran is incarcerated and request that arrangements be made for the Veteran to undergo VA spine and psychiatric examinations to assess the current severity of his service-connected cervical and lumbar spine disabilities and PTSD. All efforts to afford such examinations should be documented in the claims file. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ K. A. BANFIELD 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 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).