Citation Nr: 21009294 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-29 105 DATE: February 22, 2021 REMANDED Entitlement to service connection for a stroke is remanded. Entitlement to service connection for left-side paralysis is remanded. Entitlement to service connection for memory loss is remanded. REASONS FOR REMAND The Veteran had active Army service from July 1962 to June 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2018, at which time the issues currently before the Board were remanded for additional development. The Veteran asserts that his stroke, left-side paralysis, and memory loss are related to his active service. Specifically, he asserts that he developed his conditions as a result of drug abuse that began during service. While the Board greatly regrets further delay, additional development is necessary prior to adjudicating these claims. First, the Board notes that VA’s duty to assist has not been fully fulfilled. VA has a duty to assist claimants in the development of their claims by undertaking as many requests as are necessary to obtain relevant records from a Federal department or agency. VA will only end its efforts to obtain these records if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R § 3.159 (c)(2), (3). If VA determines that further attempts to obtain these records are futile, VA must notify the claimant as required by law. See 38 C.F.R. § 3.159 (e). For non-federal records, VA must make reasonable efforts to include an initial request, and one follow-up request. VA is excepted from making a second request if a negative response is provided after the first attempt. 38 C.F.R. § 3.159 (c)(1). If reasonable efforts do not produce the relevant records are unsuccessful, VA must notify the claimant as required by law. See 38 C.F.R. § 3.159 (e). In his January 2015 Notice of Disagreement (NOD) and August 2015 VA Form 9 (formal appeal), the Veteran reported various specific instances of behavioral and legal issues during service in support of the contention that his current stroke residuals are due to in-service substance abuse, which reportedly arose due to racist and xenophobic harassment by fellow servicemembers. The Agency of Original Jurisdiction (AOJ) should attempt to obtain the Veteran’s military personnel records, which may corroborate these contentions. In his August 2015 formal appeal, the Veteran reported receiving treatment at VA medical facilities in Denver and Miami. There are no VA outpatient treatment records associated with the file and there is no indication that the AOJ ever documented any attempts to obtain these records. On remand, the AOJ must attempt to obtain treatment records from these facilities. In his January 2015 NOD, the Veteran reported being hospitalized on two occasions for drug overdoses during active service. He specifically reported hospitalization at either Port Clinton or Sandusky, Ohio, because of an overdose while on TDY at Camp Perry, Ohio. His service treatment records show an inadvertent overdose of salicylates and hospitalization in December 1963, and another hospitalization, with no mention of the suspected medical condition, in August 1964. However, the underlying inpatient notes from these hospitalizations are not of record. On remand, the AOJ should specifically request these inpatient notes. In a January 2014 correspondence, the Veteran reported transferring to a different prison facility. The post-service medical records of record do not contain any records subsequent to his transfer. On remand, the AOJ should provide the Veteran the opportunity to submit a release for any outstanding treatment records. If, and only if, any competent evidence is received suggesting that the Veteran’s current stroke residuals may be related to service, the AOJ should schedule the Veteran for a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board acknowledges that the Veteran appears to be incarcerated for the foreseeable future. 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, the VA Adjudication Procedure Manual (M21) contains a provision for scheduling 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. The matters are REMANDED for the following action: 1. Conduct the appropriate development to obtain the Veteran’s service treatment records, VA treatment records, and military records identified in this remand. All attempts to obtain the outstanding records must be documented in the claims file. If the records are determined to be unavailable, the Veteran should be informed of that fact and afforded the opportunity to submit any records in his possession. 2. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the remaining issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 4. If, and only if, any competent evidence is received suggesting that the Veteran’s current stroke residuals may be related to service, the AOJ should undertake all reasonable measures to schedule the Veteran a VA examination. See M21-1, Part III.iv.3.F.2.d. The AOJ should confer with the prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination 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. The AOJ should determine which option is the most feasible and document all attempts taken to schedule the Veteran for VA examinations related to his claim. 5. If the AOJ is unable to afford the Veteran examinations due to his incarceration, document in detail the steps taken in attempting to schedule him for such examination. Then, forward the claims file to a suitably qualified examiner to provide an opinion regarding the etiology of the claimed stroke residuals. 6. Then, readjudicate the appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.