Citation Nr: 21076752 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 12-07 437 DATE: December 27, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for gastrointestinal disorders to include gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating greater than 10 percent for low back strain is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1988 to May 1964 and from January 2003 to May 2004. The Veteran is in receipt of a Purple Heart Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2010 and June 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing before a Veterans Law Judge. Several hearings before Veterans Law Judges were scheduled, however, a review of the record reveals that the Veteran has been unable to be attend any of these hearings due to his incarceration. 1. Entitlement to service connection for a neck disability is remanded. The Veteran is seeking service connection for a neck disability. The Veteran stated that he drove and rode over 400,000 miles cross-country with a lot of traveling done over rough desert terrain. See March 2011 NOD. The Veteran noted that his body was jolted and whipped back and forth, slammed hard onto steel floors, and squeezed by cargo crates. Id. The Veteran stated that he suffered damage to his neck and shoulder area similar to that which a rodeo rider suffers. Id. The Veteran's military occupational specialty was that of a motor transport operator. A review of the Veteran's service treatment record shows a note dated in March 2005, less than a year post active service, that indicated that the Veteran was diagnosed with a neck strain in the past. The Veteran was diagnosed with intermittent neck pain and a history of cervical strain. The Board finds that the Veteran's claim cannot be comprehensively evaluated without a VA neck examination and medical opinion. Accordingly, the Veteran's claim is remanded for an examination and medical opinion. The Board also notes that the evidence shows the Veteran has been incarcerated since November 2013. VA has special procedures for handling the scheduling of VA examinations for incarcerated veterans. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Bolton v. Brown, 8 Vet. App. 185 (1995) (VA's duty to assist incarcerated Veterans requires tailored assistance to meet the circumstances of confinement). While VA does not have the authority under 38 U.S.C. § 5711 to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility, VA's duty to assist an incarcerated Veteran extends, if necessary, to either having him examined by a fee-basis physician or requiring a VA physician to examine him at the prison where he resides. Bolton, 8 Vet. App. at 191. Ultimately, however, VA has no authority to require a prison to cooperate with a request to perform a medical examination. VA policy is to treat a Veteran's inability to attend a necessary examination by reason of incarceration as the equivalent of a failure to report. In such cases, documentation of substantial efforts to schedule and conduct the examination must be added to the claims folder. 2. Entitlement to service connection for gastrointestinal disorders to include (GERD) is remanded. The Veteran is seeking service connection for gastrointestinal disorders, to include GERD. The Veteran stated that his acid reflux symptoms began during deployment in Iraq in 2003. See March 2011 NOD. The Veteran noted that he was treated for severe hydration and blocked bowels and that he received two IV bags and was prescribed bed rest. Id. The Veteran noted that he has experienced digestive problems since recovering from the initial dehydration. Id. On his VA Form 9, the Veteran noted that he did not have digestive problems prior to deployment. A review of the Veteran's service treatment records shows that in a report of medical history completed for the National Guard in December 2005, shortly after his discharge from active service, the Veteran reported heartburn and acid reflux syndrome. The Board finds that the Veteran's claim cannot be comprehensively evaluated without a VA examination and medical opinion. Accordingly, the Veteran's claim is remanded for an examination and medical opinion. 3. Entitlement to a rating greater than 10 percent for low back strain is remanded. With respect to the Veteran's claim for an increased evaluation, more than twelve years have passed since the Veteran's September 2009 VA back examination. The "mere passage of time" does not automatically render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). However, the Veteran indicated that his disability has worsened in severity. See December 2009 Correspondence; March 2011 NOD; March 2012 VA Form 9. Where the record does not adequately describe the current severity of the claimed disability and evidence suggests a worsening in severity has occurred, VA should provide thorough and contemporaneous medical evaluation. See e.g., Allday v. Brown, 7 Vet. App. 517, 526 (1995). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Update pertinent medical records for the Veteran from the prison in which he is currently incarcerated. A copy of any request(s) sent to the Veteran, and any reply, to include a completed medical records release form, should be associated with the claims file. 3. Thereafter, schedule the Veteran for the VA examinations discussed in detail below. As the Veteran is incarcerated, the RO and/or the local Veterans Health Administration (VHA) Medical Examination Coordinator must contact the correctional facility and schedule the Veteran for the appropriate examinations. This will include attempting to arrange transportation of the claimant to a VA facility for examination or sending a VA or fee-basis examiner to the correctional facility to conduct the examination. If necessary, the AOJ could request that a medical professional at the correctional facility perform the examination. The RO should take all appropriate steps to comply with relevant procedures regarding scheduling VA examinations for incarcerated veterans. If the Veteran could not be provided with examinations, the AOJ is instructed to forward the Veteran's claim file to an appropriate VA examiner to obtain a medical opinion. 4. Schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran's neck disability. The claims file, including a copy of this Remand, must be made available to, and reviewed by the examiner. After a review of the record, an examination, and interview of the Veteran, the examiner should offer an opinion as to the following: Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed neck disability is the result of disease or injury incurred in or aggravated by service. The examiner's opinion must address the Veteran's contention that his neck disability is the result of being jolted and whipped back and forth due to long distance travelling cross-country over rough desert terrain. See March 2011 NOD. The examiner is reminded that the Veteran's lay statements regarding his symptoms, their onset, and treatment must be addressed in any opinion provided. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 5. Schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran's gastrointestinal disorder. The claims file, including a copy of this Remand, must be made available to, and reviewed by the examiner. After a review of the record, an examination, and interview of the Veteran, the examiner should offer an opinion as to the following: Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed gastrointestinal disorder is the result of disease or injury incurred in or aggravated by service. The examiner's opinion must address the Veteran's contention that he has experienced digestive problems since service and since recovering from his dehydration. The examiner is reminded that the Veteran's lay statements regarding his symptoms, their onset, and treatment must be addressed in any opinion provided. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 6. Schedule the Veteran for a VA examination to determine the severity of his service-connected low back strain. The examiner is to review the entire claims file, to include a copy of this REMAND. The examination must do complete range-of-motion studies, including active motion, passive motion, and weight- and non-weight bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, the examiner should provide an estimate of the additional impairment due to flare-ups based on the Veteran's statements and the other evidence of record A complete rationale for any opinions must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.