Citation Nr: 1811155 Decision Date: 02/22/18 Archive Date: 03/06/18 DOCKET NO. 14-17 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a higher rating for hypertension, currently rated as noncompensable. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. M. Harris, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1979. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Nashville, Tennessee. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A preliminary review of the record reveals the matter is not ready for appellate disposition. The Veteran reported that his hypertension has continually gotten worse over the last 5 years, since 2013. See February 2018 Statement in Support of the Claim. He indicated that there is new evidence related to his claim of hypertension dated from 2013 which reflects that in 2011, he was prescribed one medication for his hypertension, Vasotec. He reported that, currently, he is prescribed 5 medications, including Vasotec and Norvasc, Microzide, Indocin, and Lopressor, to control his hypertension. Id. He also reported that he suffers symptoms from hypertension which limits the type of work he can do. The Veteran submitted a newly signed Authorization for Release of Information dated February 2018 for records located at Bledsoe County Correctional Complex, which he refers to as BCCX. In February 2018, VA notified the Veteran of its attempt to obtain these new treatment records related to the Veteran's hypertension issue currently before the Board. These records must be obtained before proceeding with review of the issue. See 38 C.F.R. § 3.159 (2016). A review of the record reflects that the last time the Veteran was examined for his hypertension was in November 1982. The Board notes that this examination is over 38 years old. In his November 2017 Appellate Brief, the Veteran, through his representative, has requested a new C&P examination. In January 2003 the VA was notified that the Veteran is incarceration at the Southeast Tennessee Regional Correctional Facility (currently called Bledsoe County Correctional Complex or BCCX). VA has special procedures for handling the scheduling of VA examinations for incarcerated Veterans. The Board acknowledges that VA's duty to assist incarcerated Veterans requires it to tailor its assistance to meet the peculiar circumstances of confinement; as such individuals are entitled to the same care and consideration given to their fellow veterans. Bolton v. Brown, 8 Vet. App. 185 (1995); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him or her the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711 (2012). 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 according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated Veterans. The manual calls for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether a Veteran should be escorted to a VA medical facility for examination by VHA personnel. 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. See M21-1MR, Part III.iv.3.A.9.d. VBA Fast Letter 11-22 (Sept. 8, 2011) outlines how the compensation clinics must document that they have made multiple attempts and exhausted all possible avenues for obtaining access to the incarcerated Veteran for the examination. The record reflects that multiple VA examinations were scheduled in April 2011, May 2011, and August 2012 with VAMC personnel. Email, written, and telephone correspondence with the correctional facility noted that the facility will allow VAMC personnel to examine the Veteran on-site, at its facility. See Report of Contact dated April 25, 2011; C&P exam inquire dated April 29, 2011; and Email correspondence from Acting Chief of C & P at Tennessee Valley Healthcare System dated July 2011. However, ongoing correspondence indicates that the VA examinations for hypertension were canceled due to the correctional facility being unable to transport the Veteran to a VAMC examination and lack of VA medical staff willing or able to accommodate the exam. The local VAMC in Chattanooga declined an examination in April 2011 due to incorrect jurisdiction and no examiner available to go to prison to perform the exam. The VAMC in Nashville declined examination in May 2011 due to incorrect jurisdiction and medical staff unable to accommodate this exam. In August 2012, the VA Tennessee Valley Healthcare System reported that the examination was cancelled due to incorrect jurisdiction and not having medical staff able to accommodate this exam by going to the detention facility to perform the exam. Also, in a December 2011 Deferred Rating, the VA reported the request to schedule an examination for the Veteran to be completed at the prison in April and May 2011. In a February 2014 Deferred Rating, the VA reported that it was unable to schedule an examination and requested medication records from the correctional facility from April 2011 to present. However, on review of the record, there is no indication or documentation that the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator attempted to schedule an exam with a fee-basis provider(s) contracted by VHA, who could be sent to the correctional facility to conduct the examination. See M21-1MR, Part III.iv.3.A.9.d.; and Bolton v. Brown, supra. Additionally, the Veteran was last scheduled for a VA hypertension exam in April 2012. The Board notes that this attempt was over 6 years ago. Considering that 6 years have passed, the RO may be able to coordinate efforts with the correctional facility to accommodate the Veteran by arranging for an examination to be conducted at the correctional facility at which he is incarcerated to determine the current severity of the Veteran for hypertension. As such, on remand, the Veteran should be afforded another chance at a VA examination while he is incarcerated regarding his hypertension. Furthermore, if a VA examination cannot be arranged after the RO's reasonable attempts, the RO should arrange for a VA medical opinion from an appropriate examiner. The medical examiner must render his or her opinions based on the Veteran's available medical treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain, and associate with the claim file, all treatment records from the Bledsoe County Correctional Complex facility dated from 2013 to the present. See Veteran's February 2018 Authorization for Release of Information. All reasonable attempts should be made to obtain such records. 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, which should be documented in the claim file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 2. After the requested development above has been completed, schedule the Veteran for VA examination to determine the severity of the claimed hypertension in accordance with the procedures outlined above and found in 38 U.S.C. § 5711 (2012); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995); M21-1, Part III.iv.3.F.2.d.; VBA Fast Letter 11-22 (Sept. 8, 2011). The AOJ should note that the Veteran is incarcerated and appropriate steps should be taken to afford this Veteran a VA examination to include scheduling the examination with a fee basis provider, if needed. All indicated tests or studies must be completed. The examiner should describe all findings in detail. Explanatory rationale must be provided for all opinions expressed. (If the RO is unable to afford the Veteran an examination due to his incarceration, document in detail all of the steps taken in attempting to do so and arrange for a medical opinion by an appropriate VA examiner.) If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ 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).