Citation Nr: 22051164 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 10-16 433 DATE: September 8, 2022 REMANDED The claim of entitlement to service connection for a neurologic disability of the legs (claimed as peripheral neuropathy) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2017 and September 2019 when it was remanded for additional development. While on remand, the Agency of Original Jurisdiction (AOJ) appears to have attempted to have initially determined that the Veteran was again incarcerated due to a January 2020 Bureau of Prisons match showing the Veteran had been incarcerated since June 2019. Despite this, the AOJ attempted to contact the Veteran at her home of record to request development in accordance with the September 2019 Board remand, as well as schedule a VA examination. In February 2020, the AOJ inexplicably cancelled the examination request. Until September 2020, the AOJ continued to send correspondence to the Veteran's home of record, despite confirming that she remained incarcerated at a county facility. The AOJ then confirmed that the Veteran was still incarcerated as of September 2020. Attempts were made to schedule an examination at the facility in October 2020, but the AOJ was then informed that the Veteran had been released. In May 2021 and July 2021, the AOJ again attempted to contact the Veteran at her home of record, but was later informed via another Bureau of Prisons match in September 2021 that she was reincarcerated as of March 2021. The AOJ confirmed that the Veteran was not convicted, as in the last period of incarceration, but awaiting trial. The AOJ attempted to schedule examinations at the county facility in December 2021, April 2022, and May 2022. However it appeared that the facility was unresponsive, so the examinations were cancelled. The AOJ then readjudicated the Veteran's appeal, and re-certified the appeal back to the Board. The Board, however, notes, that at the time the AOJ cancelled the examinations in December 2021, April 2022, and May 2022, it did not attempt to confirm that the Veteran was still at the county facility as it had done with the previous period of incarceration from June 2019 to October 2020. It is reasonable to presume that it is possible that the unresponsiveness in scheduling the examination in December 2021, April 2022, and May 2022 could have been due to the Veteran's sudden release, as had happened during the earlier incarceration. Any number of circumstance could have occurred, including receiving bail before trial, plea deal for time served, or even the quick adjudication of the Veteran's legal matters and sentencing resolved. In any event, the AOJ, despite the unresponsiveness of the facility in examination scheduling, did not even seek to confirm that the Veteran was still at that facility, including nearly 8 months later with its final examination request in May 2022, despite the Veteran's apparent fluidity within that very system. Additionally, the claims file appears to suggest that the Veteran may have been released, as a separate waiver of indebtedness claim appears to have been filed by the Veteran from her home of record in June 2022. Such could further suggest that she had been released earlier than that date. Last, in its September 2019 remand, the Board directed that if the Veteran was unwilling to participate in a VA examination, the claims file should still be forwarded to an appropriate specialist to address the requested medical nexus opinions previously provided. It does not appear that the AOJ attempted this, even despite the inability to schedule the Veteran for a VA examination. Therefore, the Board finds that the original directives of the July 2017 and September 2019 remands continue to be frustrated by the inability to conduct the requested development. The matters forming the crux of the Veteran's appeal (i.e., the nature, date of initial onset, and etiology of the Veteran's alleged neurologic disability of the legs) remain unanswered and beyond the purview of the Board and the AOJ. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In sum, an additional remand is necessary to have the AOJ finish completing the steps necessary to assist the Veteran in completing the requested development from the prior Board remands. In particular, the AOJ must seek confirmation of the Veteran's current incarceration status. If the Veteran is in fact released, then all appropriate development should be directed to her current home of record, which should also be confirmed. If the Veteran is again incarcerated, the AOJ should verify that the Veteran is still at the facility sought when a VA examination is to be scheduled. The AOJ must fully document all attempts in this regard. To ensure completeness of the file for the examiner to review and consider when completing the examination and providing the requested medical opinions, the Veteran should be contacted and requested to identify all outstanding VA and private treatment records pertinent to the issue being remanded. The matters are REMANDED for the following action: 1. The AOJ must ascertain the Veteran's current incarceration status. If the Veteran is in fact released, then all appropriate development should be directed to her current home of record, which should also be confirmed. If the Veteran is again incarcerated, the AOJ should verify that the Veteran is still at the facility sought when a VA examination is to be scheduled. The AOJ must fully document all attempts in this regard. 2. The AOJ must obtain and associated with the Veteran's file all records of VA treatment from the Montgomery VA Medical Center (VAMC), and all associated facilities, dated after July 2019. 3. The AOJ must contact the Veteran and request that she complete a release for any post-service treatment records that are outstanding and pertinent to the appeal remanded, herein. In these releases, the Veteran should provide a time period in which she was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. Specifically, the Board is interested in all treatment records from the time of her incarceration from December 2017 to May 2019; June 2019 to October 2020; and March 2021 to the present, if applicable. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature, date of initial onset, and etiology of any neurologic disability of the Veteran's legs. All indicated studies and tests should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any neurologic disability of the right and/or left lower extremity found. If no such disability is diagnosed, the examiner must indicate whether the Veteran's right and/or left lower extremity causes any functional impairment. (b) For any right and/or left lower extremity neurologic disability/functional impairment diagnosed, please opine as to whether it is at least as likely as not that such disability/functional impairment had its onset or is otherwise related to the Veteran's active service. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. If the Veteran is incarcerated, the AOJ must proceed under guidelines found in Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (the duty to assist incarcerated veterans requires VA to tailor it's assistance to meet the peculiar circumstances of confinement as such individuals are entitled to the same care and consideration given to their fellow veterans). The efforts to schedule these examinations must be documented in the claims folder. If such examinations cannot be scheduled, an explanation must be included in the record. If the Veteran is unwilling, or unable, to participate in a VA examination due to incarceration, her electronic file must be transferred to an appropriate VA clinician, who, after a review of the complete record, must address the instructions provided above in (4). Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.