Citation Nr: 1825320 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-34 249A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for anxiety. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from August 1970 to September 1970. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to the benefits sought. The Veteran appealed the underlying decisions in a Notice of Disagreement received in September 2012. In his October 2014 substantive appeal, the Veteran limited his appeal to the issues of entitlement to service connection for anxiety and hypertension. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his current anxiety and hypertension disorders are related to his active service. He further reports that both disorders began during service and have continued to the present. In this regard, service treatment records are negative for complaints and diagnoses of anxiety or hypertension. Post-service prison treatment records dated in April 2007 through June 2012 demonstrate current diagnoses of anxiety and hypertension disorders. Based on the above, the Board finds that the Veteran must be afforded a VA examination to address the nature and etiology of his current anxiety and hypertension disorders. 38 C.F.R. § 3.159 (c)(4) (2017). The Board notes that the Veteran is currently incarcerated. The duty to assist incarcerated veterans requires VA 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 non-incarcerated veterans. 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 the necessary examination at the closest VA medical facility. See 38 U.S.C.A. § 5711 (West 2014). 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 worksheets; 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 AOJ 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. VHA 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. See M21-1, Part III.iv.3.F.2.d. Therefore, upon remand, the AOJ must make substantial efforts to schedule an examination of the Veteran pursuant to the guidance discussed above, and document all such efforts. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, the AOJ should take all reasonable measures to schedule the Veteran for a VA examination pursuant to the guidance in VA Adjudication Manual, M21-1, III.iv.3.F.2.d. At least two attempts should be made to contact the Veteran's prison facility or state prison authorities to schedule the examination. Associate with the record all such attempts, including all communications with identified prison personnel or state prison authorities. a. If the Veteran's correctional facility authorizes an examination by a qualified prison medical professional, then the AOJ should provide the examiner with the appropriate Disability Benefits Questionnaire forms for both anxiety and hypertension disorders. b. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. c. Then, following a review of the relevant records and lay statements, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has a current anxiety and/or hypertension disorder(s) that originated during his period of active service or is otherwise etiologically related to his active service. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The AOJ should also undertake any additional development deemed necessary. 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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).