Citation Nr: 21007836 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 00-13 879 DATE: February 10, 2021 REMANDED Entitlement to service connection for a chronic multi-symptom illness, to include fibromyalgia and chronic fatigue syndrome, and as due to environmental exposures in Southwest Asia, is remanded. Entitlement to service connection for a respiratory disability, to include mycoplasma incognitus/tuberculosis, shortness of breath and persistent coughing, and as due to environmental exposures in Southwest Asia, is remanded. Entitlement to service connection for a neurological problem due to chemical imbalance, to include as due to environmental exposures in Southwest Asia, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, is remanded. Entitlement to nonservice-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to September 1980 and from September 1984 to July 1993. 1. The claims of entitlement to service connection for a chronic multi-symptom illness, to include fibromyalgia and chronic fatigue syndrome; a respiratory disability, to include mycoplasma incognitus/tuberculosis, shortness of breath and persistent coughing; and a neurological problem due to chemical imbalance, all to include as due to environmental exposures in Southwest Asia, are remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for chronic fatigue, fibromyalgia, respiratory disability, mycoplasma incognitus/tuberculosis, and neurological problems due to a chemical imbalance at this time. The Veteran contends that his disabilities were incurred as a result of his service in Southwest Asia during the Gulf War. In October 2015, the Board remanded these claims so that the Veteran, who is incarcerated, could be afforded a VA examination. In June 2016, VA mailed a letter to the correctional facility requesting that they coordinate with VA to schedule an examination in accordance with the Board’s remand directives. In July 2016, VA received a letter granting permission for the examination and requesting that it be performed by VA personnel at the correctional facility. The letter also requested that VA provide a list of individuals to be in attendance, the requested date and time for the examination, and a list of supplies to be brought to the examination. In December 2016, a RO employee emailed VA personnel requesting that an examination be scheduled and notifying them that permission for the examination had been obtained from the correctional facility. An Administrative Officer at the Tennessee Valley Healthcare System replied that an examination could not be performed, stating, “We still do not have a provider willing to go into the prison system to conduct this examination, regardless of whether you have permission or not.” The Administrative Officer further noted that a previous examination request had been cancelled for the same reason. In an August 2017 remand, the Board explained that 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. While VA does not have the authority to require a correctional facility release a veteran so that VA can provide him or her the necessary examination, VA’s duty to assist includes attempting to arrange transportation of a claimant to a VA facility for examination, contacting the correctional facility and having their medical personnel conduct an examination according to VA examination worksheets, or sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Additionally, the VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated veterans. The Board found that VA failed to comply with its duty to assist and that correspondence indicating that there were no providers “willing to go into the prison system” to examine the Veteran did not constitute good cause for VA’s failure to comply with the Board’s remand directives. Thus, the Board remanded the issues so that the RO could schedule the Veteran for a VA examination. The remand directives further directed that if an examination could not be obtained, the claims file was to go to a VA examiner for a medical opinion. In March 2019, a RO employee emailed VA personnel requesting that an examination be scheduled and notifying them that permission for the examination had been obtained from the correctional facility. In a May 2019 response, the same Administrative Officer at the Tennessee Valley Healthcare System indicated that they had no providers “who will go into a prison facility and conduct examinations.” An August 2019 examination cancellation notice states they did not have providers who “are willing or able” to go to the correctional facility. A supplemental statement of the case (SSOC) was issued in September 2019 and the case returned to the Board. The Board again finds that VA has failed to comply with its duty to assist. Correspondence indicating that there were no providers willing to go into the correctional facility to examine the Veteran does not constitute good cause for VA’s failure to comply with the Board’s remand directives. Furthermore, once VA determined that an examination could not be scheduled, it failed to obtain a VA medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Thus, the Board finds that a remand is warranted in order that the Veteran be afforded a VA examination and/or medical opinion. Due to the passage of time, VA should confer with the correctional facility to determine whether the Veteran should be transported to a VA facility for examination, whether the correctional facility has medical personnel that can conduct an examination according to VA examination worksheets, or whether they will still allow a VA or fee-basis examiner into the correctional facility to conduct the examination. The Board is aware of the practical difficulties of scheduling an examination in light of the current COVID-19 pandemic and notes that the examination may be conducted via telehealth or similar service during the social distancing restrictions of the pandemic. If an in-person or telehealth examination cannot be obtained, VA should obtain VA medical opinions as to the nature and etiology of the Veteran’s claims. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities and entitlement to nonservice-connected pension benefits are remanded. Finally, because a decision on the remanded service connection issues could significantly impact a decision on the issues of entitlement to TDIU and nonservice-connected pension benefits, the issues are inextricably intertwined. A remand of the claims for TDIU and nonservice-connected pension benefits is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination(s) to determine the nature and etiology of his claimed chronic fatigue, fibromyalgia, respiratory, mycoplasma incognitus/tuberculosis, and neurological disabilities. The AOJ should document all attempts to schedule the Veteran for his examination in the claims file and include negative responses. Confer with the correctional facility to determine whether the Veteran should be transported to a VA facility for examination, whether the correctional facility has medical personnel that can conduct an examination according to VA examination worksheets, or whether they will allow a VA or fee-basis examiner into the correctional facility to conduct the examination. Due to the current COVID-19 pandemic, the examination may be conducted via telehealth or similar service. The examiner is advised to examine and evaluate this Veteran with Southwest Asia service for any chronic disability pattern. The Veteran has claimed disability patterns related to fatigue, joint pain, neurological signs and symptoms, and signs and symptoms involving the upper and lower respiratory system. If any diagnostic testing is indicated, such as testing for tuberculosis, such should be ordered. The examiner should review the entire claims file, including the Veteran’s service treatment records, post-service VA medical records and examination reports, post-service private medical records and evaluations, and post-service medical records obtained from the Tennessee Department of Correction. The examiner should specifically review the Veteran’s reported exposures listed on his Persian Gulf Registry Code sheet, associated with the record in August 1998; the Veteran’s own reported history of onset of illness during service, including an August 1998 timeline of illness; an October 2004 declaration; and a medical history statement received in January 2009. Additionally, the examiner should review any additional pertinent information supplied by the Veteran; affidavits from friends or family members pertaining to the Veteran’s medical history, including a March 1999 affidavit from Major L, indicating that he noticed that the Veteran was in poor respiratory health in the fall of 1992; and any other information deemed pertinent. Then, the examiner should provide a medical statement explaining whether the Veteran has any neurological, respiratory, joint pain-related, and/or fatigue-related disability pattern that is: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; (3) a diagnosable chronic multi-symptom illness with a partially explained etiology; or (4) a disease with a clear and specific etiology and diagnosis. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the individual Veteran’s circumstances rather than the illnesses as they are understood in the general public. If, after examining the Veteran and reviewing the claims file, the examiner determines that the Veteran has any neurological, respiratory, joint pain-related, and/or fatigue-related disability pattern that is either (1) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (2) a disease with a clear and specific etiology and diagnosis, he or she should then provide a medical opinion, with supporting rationale, as to whether such disease or disability pattern is at least as likely as not (50 percent probability or greater) that the disease or disability pattern is related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. (Continued on the next page)   2. If an in-person or telehealth examination cannot be obtained, send the claims file to a VA examiner for the requested medical opinions as indicated above. 3. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.