Citation Nr: 21031186 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-15 063 DATE: May 20, 2021 REMANDED Entitlement to service connection for arthritis is remanded. Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from November1967 to March 1971. By way of background, in a November 2019 decision, the Board, in pertinent part, denied entitlement to service connection for arthritis and asthma. The Veteran subsequently appealed the Board's November 2019 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In a March 2020 Memorandum Decision, the CAVC vacated the portion of Board's November 2019 decision denying service connection for arthritis and asthma, and remanded the claims. The case has since been returned to the Board for appellate review. 1. Entitlement to service connection for arthritis is remanded. 2. Entitlement to service connection for asthma is remanded. In December 2018 correspondence, the Veteran's representative articulated the Veteran's contentions that his arthritis and asthma are secondary to his diabetes mellitus. The representative submitted articles discussing a potential association between arthritis and diabetes mellitus as well as a potential association between asthma and diabetes mellitus. In the March 2020 Memorandum Decision, the CAVC remanded the Veteran's claim to reassess whether a new VA examination or opinion was needed in light of the submitted articles and other evidence of record. There is no dispute as to whether the Veteran has the asthma and arthritis disabilities claimed. Indeed, treatment records from the unit where the Veteran is incarcerated indicate that he is followed for arthritis in the back, hips, and hands. The arthritis is noted to have first been observed on August 2, 2006, and there is also record of complaints of arthritic pain in April 2004. Current medical treatment records indicate that he is treated for asthma with an inhaler. The records reflect the Veteran first reported shortness of breath in April 2004, and he was diagnosed with intermittent asthma in July 2011. There is also no dispute that the Veteran is in receipt of an award of service connection for diabetes. Importantly, in December 2018, the Veteran's representative submitted articles discussing a potential association between arthritis and diabetes mellitus, as well as a potential association between asthma and diabetes mellitus. As such, there is an indication that arthritis and asthma could be related to diabetes mellitus, but there is insufficient evidence of record by which the Board can make a decision. On remand, the Veteran should be scheduled for examinations, so that medical nexus opinions can be obtained. The Board observes that the Veteran has been incarcerated since the time of his application for service connection, and is not scheduled to be released for some time. However, the Veteran's incarceration does not negate VA's statutory obligation to assist in the development of his claims. 38 U.S.C.§5103A.VA's duty to assist incarcerated Veterans requires tailored assistance to meet the circumstances of confinement. Wood v. Derwinski, 1 Vet. App. 190 (1991); Bolton v. Brown, 8 Vet. App. 185 (1995). Although VA does not have the authority under 38U.S.C.§5711 to require a correctional institution to release the Veteran so that VA can provide him the necessary examinations at the closest VA medical facility, VA's duty to assist an incarcerated veteran extends, if necessary, to either having him examined by a VA physician or a fee-basis physician at the prison where he resides. Bolton, 8Vet. App.at 191. It should also be determined if it is feasible to have the Veteran examined at his correctional facility by its medical staff. The record also reflects that the Veteran has received ongoing treatment with Correctional Managed Health Care while incarcerated. The AOJ should take this opportunity to obtain and associate with the claims file all identified outstanding and ongoing incarceration treatment records relevant to the Veteran's claims for service connection for asthma and arthritis. The matters are REMANDED for the following action: 1. Seek the Veteran's assistance in identifying and obtaining any outstanding records of pertinent state treatment during incarceration for the claimed disabilities. He should specifically be requested to submit authorization necessary to enable VA to obtain records of state medical treatment received for the claimed arthritis and asthma dating since August 2019 (the last dated treatment record associated with the claims file), to include records of any treatment received with Correctional Managed Health Care while incarcerated. 2. The AOJ must take all reasonable measures to afford the Veteran the examinations directed below, to specifically include all steps required under VA's duty to assist to afford incarcerated veterans examinations. All attempts to obtain an examination must be documented and associated with the claims file. 3. To the extent possible, provide an examination and obtain a medical opinion addressing the nature and etiology of the Veteran's arthritis disability. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide responses to the following: a) Please clarify all current arthritis disabilities; b) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed arthritis was incurred during, or is otherwise related to the Veteran's service? c) Is it at least as likely as not that any diagnosed arthritis disability was caused or aggravated by the Veteran's service-connected diabetes mellitus? In providing the responses above, the examiner should consider treatment records from the unit where the Veteran is incarcerated indicate that he is followed for arthritis in the back, hips, and hands. The arthritis is noted to have first been observed on August 2, 2006, and there is also record of complaints of arthritic pain in April 2004. The examiner should also consider the articles submitted by the Veteran's representative in December 2018 that describes a potential association between arthritis and diabetes mellitus. The examiner should provide a complete rationale for any opinions offered. 3. To the extent possible, provide an examination and obtain a medical opinion addressing the nature and etiology of the Veteran's asthma disability. The examiner should review the entire claims file, conduct all necessary tests and studies, and respond to the following: a) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's asthma was incurred in, or is otherwise related to the Veteran's service? b) Is it at least as likely as not that the asthma was caused or aggravated by the Veteran's service-connected diabetes mellitus? In providing these responses, the examiner should consider medical treatment records that indicate that the Veteran is treated for asthma with an inhaler. He first reported shortness of breath in April 2004, and he was diagnosed with intermittent asthma in July 2011. The examiner should also consider the articles submitted by the Veteran's representative in December 2018 that describes a potential association between asthma and diabetes mellitus. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. Then readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Crohe, 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.