Citation Nr: 21062561 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 15-04 756 DATE: October 8, 2021 REMANDED Entitlement to service connection for a chronic sinus condition, claimed as hay fever, is remanded. Entitlement to service connection for a bilateral eye condition, to include as secondary to a sinus condition, is remanded. Entitlement to service connection for a bilateral ear condition, to include as secondary to a sinus condition, is remanded. Entitlement to service connection for a left ruptured hernia is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1971 to January 1974. The Veteran has also indicated a period of reserve service through 1977. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The record reflects that the Veteran is currently incarcerated, and is not eligible for parole until March 2028. In May 2018, the Board remanded each of these claims for the RO to conduct further record development and to provide the Veteran with VA examinations in support of his claims. A preliminary review of the evidence of record indicates that subsequent record development was performed. However, as will be discussed below, the RO's efforts to schedule VA examinations and to document all attempts to do so, have not substantially complied with the Board's instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a chronic sinus condition, claimed as hay fever, is remanded. 2. Entitlement to service connection for a bilateral eye condition, to include as secondary to a sinus condition, is remanded. 3. Entitlement to service connection for a bilateral ear condition, to include as secondary to a sinus condition, is remanded. 4. Entitlement to service connection for a left ruptured hernia is remanded. The Veteran argues that the RO did not substantially comply with the Board's May 2018 remand instructions and VA's duty to assist the Veteran in his claim. Specifically, the Veteran argues that the RO did not follow the Board's instructions to attempt to schedule an in-person examination of the Veteran with his corrections facility, and to document in detail all of the steps taken to do so. See July 2021 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711. 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 VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). In affording an incarcerated Veteran an examination, the RO must document substantial efforts to schedule and conduct the examination and associate such documentation to the claims folder. Additionally, Veterans Health Administration (VHA) compensation clinics must provide documentation that they have made substantial attempts to schedule and conduct the examination and have exhausted all possible venues for obtaining access to the incarcerated veteran for the examination. VA Adjudication Procedure Manual M21-1, Part III, Subpart iv, Chapter 3, Section F, Topic 2 (September 15, 2017). In this case, the record shows that the RO has attempted to accommodate the Veteran's special circumstances. However, the documentation of these attempts does not show that the RO fully complied as directed in the Board's previous remand instructions. January and February 2020 records in the claim file show that VA did attempt to schedule medical examinations with the Veteran's corrections facility. The claim folder does not include any copies of emails or written correspondence between VA and the corrections facility. However, there are several brief written summaries of the RO's efforts. Records show that the correctional officials would not agree to transport the Veteran to any VA site, and thus the RO attempted to schedule a VA medical sub-contractor to perform the examination at the jail. These attempts ultimately failed because the officials would not allow contracted medical personnel to bring their own medical equipment, or to use the facility's equipment. See January and February 2020 VA Form 21-0820 Report of General Information, Exam Requests, and Exam Request Modification. The record does not indicate whether the RO requested, and/or whether corrections officials rejected, that the corrections facility medical personnel perform an examination utilizing their own resources and equipment. Id. This was a specific instruction by the Board in its May 2018 remand, and it was highlighted in bold. Further, it is a stated requirement by the United States Court of Appeals for Veterans Claims in Bolton, 8 Vet. App. at 191. If the RO discussed this possibility with corrections officials, it is not shown in the record. Thus, the Board's instructions were not substantially complied with. Stegall, 11 Vet. App. at 271. The Board is mindful that the RO arranged for VA medical opinions to be rendered based solely on review of the Veteran's medical records. Nonetheless, the Board is not satisfied that VA had first exhausted all possible venues for obtaining access to the incarcerated Veteran for examination. These matters are REMANDED for the following actions: 1. Contact the correctional facility, to attempt to schedule the Veteran for in-person VA examinations for his sinus and/or hay fever condition, bilateral ear condition, bilateral eye condition, and hernia condition. **Thoroughly document all discussions with the correctional facility, including: (a.) Efforts to have the correctional facility's own medical personnel complete the appropriate VA examinations and disability benefits questionnaire forms. (b.) Renewed efforts to send a VA or fee-basis examiner to the correctional facility to conduct the appropriate examinations. If need, considered bring diagnostic testing equipment with appropriate pre-approval. (c.) Renewed efforts to transport the Veteran to a VA facility for examination. If and only if the above efforts are fruitless in scheduling the Veteran for an in-person examination, prepare a VA memorandum explaining why, addressing each of the above considerations, associate such memorandum with the claim folder, and readjudicate the Veteran's claims based on the evidence of record including examinations in the file which were based solely on record review. If any claim is not granted in full, prepare an SSOC and return the claims to the Board. 2. If in-person examinations can be scheduled, they should include an examination by appropriate examiner(s) to determine the etiology of any current sinus disability and/or hay fever. The examiner should indicate review of the entire claims file, including a copy of this remand. All appropriate tests, studies and consultation should be accomplished and all clinical findings should be reported in detail. The examiner should: (d.) Identify any current chronic sinus condition or hay fever condition diagnosed since the date of the claim. (e.) Provide an opinion for whether hay fever clearly and unmistakably existed prior to the Veteran's entry to service. Attention is called to a February 1973 Report of Medical History for a periodic examination, on which the Veteran endorsed "hay fever," and the examiner wrote "hay fever all of life." (f.) If the examiner determines that hay fever clearly and unmistakably existed prior to service, was it also clearly and unmistakably NOT aggravated (permanently worsened) by service? (g.) If it did not exist prior to service, provide an opinion as to whether it is at least as likely as not any current hay fever or sinus disability had its onset in service or is otherwise causally or etiologically related to service. Please address the February 1973 report endorsing hay fever. Only IF a sinus condition or hay fever is currently diagnosed, the examiner(s) should continue with an examination to determine the nature and etiology of any current bilateral ear disability. The examiner should indicate review of the claim file and: (h.) Identify any bilateral ear disability diagnosed since the date of the claim. (i.) Provide an opinion as to whether it is at least as likely as not that any current bilateral ear disability is proximately due to, or aggravated by, a service-connected disability. In doing so, please comment on the Veteran's lay statement that he has a bilateral ear disability that is related to his sinus/hay fever condition. --The examiner(s) should then continue with an examination to determine the nature and etiology of any current bilateral eye disability. The examiner should indicate review of the claim file and: (j.) Identify any bilateral eye disability diagnosed since the date of the claim, including refractive errors / defects. The examiner should address the Veteran's reports from his January 2015 VA Form 9 that he underwent eye surgery at John Sealy Hospital in Galveston, Texas in 2000. (k.) Visual Defects Provide an opinion as to whether there was additional disability superimposed upon the visual defect during the Veteran's service, and if so, determine whether the superimposed disability is related ot the Veteran's service including duties required based on his MOS. ** In responding to this, please consider and comment on the Veteran's statement that his eye condition went untreated during service, but worsened "due to the required duty in transportation where vision was necessary to myself and others." See January 2015 VA Form 9. (l.) For any other current eye disability that did not preexist service, provide an opinion as to whether: (i.) it is etiologically related to the Veteran's military service; or (ii) it is proximately due to, or aggravated by, a service-connected disability. (m.) Please comment on the Veteran's statement that he has a bilateral eye disability that is related to his sinus / hay fever condition. --The examiner(s) should then continue with an examination to determine the nature and etiology of any current left ruptured hernia condition. The examiner should indicate review of the claim file and: (n.) Indicate whether a hernia, or residuals of a ruptured hernia, has been diagnosed since the date of claim. (o.) For any current hernia disability or residuals thereof, provide an opinion as to whether it is at least as likely as not incurred in service or otherwise related to service. **In doing so, please address the February 1973 periodic examination Report of Medical History on which the Veteran reported a "hernia on left side" and the examiner noted the "alleged" left side hernia. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.