Citation Nr: 21062699 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 04-01 366 DATE: October 12, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active service from September 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied this claim in a March 2005 decision. The Veteran appealed the March 2005 Board decision to the Court of Appeals for Veterans Claims (Court). In August 2005, the Court granted a Joint Motion for Remand (JMR), which vacated the March 2005 decision and remanded the issue back to the Board. The appeal was then remanded by the Board in March 2006. The Board denied the claim again in a December 2008 decision. The Veteran appealed the December 2008 Board decision to the Court. In an April 2010 Memorandum Decision, the Court vacated the December 2008 Board decision, and remanded the claim back to the Board. In December 2010, July 2017, and October 2020, the Board remanded this claim for additional development. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran asserts several in-service stressors. The Veteran described an incident where his ship, the U.S.S. Hermitage, came under fire and sank. Additionally, the Veteran described an incident where he witnessed the death of a fellow servicemember who was crushed by a boat after falling into the water. These two stressors were verified in November 2011. The Veteran also asserts that a stressor was that his wife became pregnant while he was in service and although she insisted the baby was his, he knew he was not the father. The Veteran described that he felt being in service ruined his life. The record contains several post-service diagnoses of psychiatric disorders, including major depressive disorder and dysthymic disorder. Unfortunately, although several Board remands have directed the RO to afford the Veteran a VA examination, to date, the Veteran has not yet had an examination. The Board acknowledges that the Veteran is currently serving a life sentence in a correctional facility. Nevertheless, the duty to assist incarcerated veterans requires VA to tailor its assistance to meet "the peculiar circumstances of confinement" because these individuals are entitled to the same care and consideration given to their fellow veterans. Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (quoting 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 the necessary examination at the closest VA medical facility. See Bolton, supra. However, VA is able to schedule examinations of incarcerated Veterans, including: (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. This appeal has been remanded multiple times to afford the Veteran a VA examination. Of note, the claims file indicates that although several correctional facility employees have been contacted at various times to schedule an examination and/or to have a disability benefits questionnaire (DBQ) completed, there has been a failure to follow through with the scheduling process. In a March 2012 report, the RO documented a phone call with an unidentified prison health department employee in which the RO asked if VA could send an examiner to the prison. The report explained that the Veteran had been unable to attend a VA examination at a local VAMC because prison authorities were unable to provide transportation. The prison health department employee stated that the prison had examiners who could examine the Veteran. The prison employee also stated that if VA wanted to send an examiner to the facility, it had to be approved by the Department of Corrections (DOC). The RO employee asked the prison employee for a DOC contact phone number to get such approval, but the prison employee stated that she did not have a contact number. No additional research appears to have been made to obtain a contact number for the DOC. The RO then submitted another exam request in March 2012 to the VA medical facility, indicating that the Veteran was incarcerated and asking the medical center to provide copies of any correspondence to the prison regarding scheduling an exam. That examination request was then cancelled by the medical center with no further explanation. A December 2017 Report of Contact indicates the RO contacted the correctional facility and spoke to Ms. T., who indicated she would call back after speaking with the necessary personnel regarding scheduling an examination. No additional contact was made with Ms. T. An email was sent in November 2018 to Ms. A., noting that a prior discussion indicated the request for examination must be sent in writing, and therefore, the email was to serve as a written request for an examination. No further contact was made with Ms. A. In September 2019, a DBQ was sent to the correctional facility to be completed by a qualified mental health professional at the facility. The Veteran reported that he was seen by the prison psychiatrist on October 28, 2019, who completed the DBQ; however, the completed DBQ has not been associated with the claims file. As noted in the October 2020 Board remand, in a March 2020 letter the RO informed the Veteran that it was his responsibility to have the DBQ sent to VA. The October 2020 Board remand noted that it is not the sole responsibility of the Veteran to have the completed forms sent to VA and directed the RO to make reasonable efforts to obtain copies of the DBQ completed by Dr. F. in October 2019. Although a letter was sent to the Veteran with a carbon copy (cc) to the correctional facility in December 2020, no response was received. The RO also sent a letter to the correctional facility in October 2020, noting that two employees at the facility indicated in December 2017 and March 2018 that an examination would be set up and the request should be sent in writing. The October 2020 letter specifically noted that a negative response was required from the correctional facility; however, no response from the correctional facility was received and no additional requests were made from the RO. The Board finds that failure to follow through with scheduling an examination and not obtaining a negative response is a failure of the duty to assist. Furthermore, the Board notes that as directed in the October 2020 Board remand, an etiological opinion was obtained in February 2021. The Board finds this opinion is inadequate. The February 2021 VA medical opinion is identical to the opinion received in February 2015 and indicates that the Veteran's depression pre-existed his time in service. The Veteran's entrance examination, however, did not note any pre-existing psychiatric disorders, and therefore, there must be clear and unmistakable evidence that a disorder pre-existed service. The examiner failed to use the correct standard in providing the opinion in February 2021. Additionally, although the examiner indicated the Veteran's two verified stressors were sufficient to meet the criteria for a PTSD stressor, the examiner stated a medical opinion could not be rendered regarding whether the Veteran had PTSD until the Veteran had a detailed psychiatric examination. The Board finds this opinion to be contradictory, as it conflicts with the fact that the examiner was able to offer an opinion regarding the Veteran's depression without an examination. On remand, the RO must attempt to obtain the DBQ completed at the correctional facility in October 2019. The RO must attempt to schedule a VA examination for the Veteran, whether it is to arrange transportation of the Veteran to a VA facility for examination, to have medical personnel at the correctional facility conduct an examination according to VA examination worksheets, or to send a VA or fee-basis examiner to the correctional facility to conduct the examination. The RO must document all attempts to schedule the Veteran for his examination in the claims file. If the examination is unable to be conducted in any form and/or the DBQ is not located, a negative response must be included in the claims file. While this case is in remand status, the Veteran's representative is also free to obtain a medical opinion to substantiate the claim. The matters are REMANDED for the following action: 1. After obtaining any necessary authorizations from the Veteran, send a letter specifically to the Easterling Correctional Facility requesting copies of the Veteran's medical and mental health treatment records. 2. Send a letter specifically to the Easterling Correctional Facility to obtain a copy of the VA examination forms completed by Dr. F. in October 2019. All attempts to obtain the October 2019 examination report must be documented in the record, and if the report is not available, a negative response should be documented in the record. 3. Send a letter to the Veteran's attorney representative advising he may obtain and submit a medical opinion with supporting rationale based on a review of the file in support of the Veteran's claim. 4. Conduct all appropriate development to schedule the Veteran for a VA examination for his claimed psychiatric disorder by (1) attempting to arrange transportation of the Veteran 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. a) Associate with the claims file all communications with identified prison personnel or state prison authorities. b) The RO must exhaust all possible avenues for obtaining access to the incarcerated Veteran for the examination. c) A negative response from the correctional facility must be obtained and associated with the claims file if it is determined that it is not possible to afford the Veteran a VA examination by any of the three options as listed above. d) If it is determined that an examination is not possible, and after documenting all evidence of substantial efforts to schedule the examination AND a negative response is received from the correctional facility, the RO must still obtain a VA medical opinion. *The examiner should review the claims file and based on the evidence of record, please clarify the Veteran's diagnosis. i) The examiner should opine whether it is clear and unmistakable that the Veteran entered service with an acquired psychiatric disorder. ii) If the Veteran's acquired psychiatric disorder clearly and unmistakably pre-existed service, the examiner should determine whether it is clear and unmistakable that his acquired psychiatric disorder was not aggravated beyond the natural progress of the disorder by his time in service, to include the two verified stressors and his reported stressor of his wife becoming pregnant by another man while he was in service. iii) If the Veteran's acquired psychiatric disorder did not clearly and unmistakably pre-exist service, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any post-service acquired psychiatric disorder is related to his time in service, to include the three reported in-service stressors. *The examiner should consider and discuss: i) the September 1965 enlistment examination that did not note any psychiatric abnormalities; ii) the Veteran's two verified in-service stressors; iii) the Veteran's reported stressor of his wife becoming pregnant by another man during service; and iv) the Veteran's asserted theory that his time in service caused his post-service psychiatric disorder(s). All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.