Citation Nr: 18124046
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-07 318
DATE:	August 3, 2018
REMANDED
Entitlement to service connection for residuals of a shell fragment wound of the left hand and wrist is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to service connection for tinnitus is remanded.
Entitlement to service connection for a sinus condition is remanded.
Entitlement to service connection for a sleeping disorder is remanded.
Entitlement to service connection for hypertension, claimed as high blood pressure, to include as secondary to exposure to an herbicide, is remanded.
Entitlement to service connection for a gastrointestinal condition, to include a duodenal ulcer, is remanded.
Entitlement to service connection for chloracne skin problems, to include as secondary to exposure to an herbicide, is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 
REASONS FOR REMAND
The Veteran served on active duty from September 1968 to April 1970. This matter comes to the Board of Veterans’ Affairs from rating decisions in October 2012, December 2013, and December 2014.
Throughout the pendency of the appeal the Veteran has been incarcerated. A review of the record indicates that the regional office in Montgomery, Alabama (RO), attempted to obtain the Veteran’s treatment records from the facility the Veteran has been held during appellate period. The facility never responded to the RO’s attempts to obtain the Veteran’s treatment records.
As part of the RO’s development for these claims, the RO scheduled the Veteran several times for VA examinations. The Veteran failed to report for the examinations due to his incarceration. The record indicates that the RO contracted a private examiner to conduct an examination. That examination was canceled once the contactor discovered that Veteran was incarcerated. The record holds a note that a local VHA (Veterans Health Administration) official mailed a letter to the prison the Veteran is held, but there was no reply. The local VHA official also attempted to call the prison, however the local VHA official was unable to speak to anyone with the authority to schedule the Veteran for an examination. The record indicates that no one from the prison called the local VHA official back. 
The Secretary’s duty to assist claimants in obtaining evidence is set forth, by regulation, at 38 C.F.R. § 3.159 (c). This duty may include obtaining records and providing a medical examination. See id. The United States Court of Appeals for Veterans Claims (Court) recognizes that incarcerated veterans “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)). The Court has cautioned “those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement.” Id. 
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. 
In keeping with Bolton, the VA Adjudication Procedure Manual (Manual) contains a provision for scheduling examinations of incarcerated veterans. The Manual calls for the RO or the local VHA Medical Examination Coordinator to confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel. 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. See M21-1, Part III.iv.3.A.9.d. It is noted that because some State laws restrict the movement of and access to prison inmates, neither of the above options may be possible. In such cases, documentation of substantial efforts to schedule and conduct the examination must be added to the claims folder. M21-1, Part III.iv.3.A.9.d.
The Board finds that the RO did not follow the procedures proscribed by the Manual. The Board finds the efforts of the RO to schedule the Veteran for an examination were not substantial. As noted above, the Veteran repeatedly scheduled the Veteran for examinations in which he could not attend and although the a local VHA official contacted the prison by mail and telephone, the official did not follow up with another letter or attempt to call again when no response was given. Further, the RO failed to adequately document its attempts to schedule the Veteran for examination. Therefore, a remand is required for examinations which will be discussed below. 
The Board finds in this instance, that the duty to assist in providing the Veteran with examinations is intertwined with its duty to assist in obtaining treatment records. Therefore, upon remand and during the development for the Veteran’s examinations the RO should attempt to obtain the Veteran’s treatment records from the facility that holds him. 
1. Entitlement to service connection for shell fragment wound of the left hand and wrist, is remanded.
The Veteran claims that he has a left wrist injury, which occurred in-service. The Veteran’s service treatment records note that the Veteran had a left wrist and hand injury. A March 1969 service treatment record note x-ray evidence of a frag in the Veteran’s wrist. Therefore, an examination is required to determine whether the Veteran has a current left wrist and/or hand disability and whether it is etiologically related to his in-service injury.
2. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded.
The Veteran claims that he currently has hearing loss and tinnitus. The Veteran’s service treatment records note that there was a puretone threshold shift in his hearing between the Veteran’s May 1967 entrance examination and his March 1970 separation examination. Further, service treatment records note that in February 1969, the Veteran had pain in his left ear. Treatment records note that he had excess cerumen in his left ear. Therefore, an examination is required to determine whether the Veteran has a current hearing loss disability and/or tinnitus and whether it is related to service.  
3. Entitlement to service connection for acquired psychiatric disorder, to include PTSD is remanded. 
The Veteran contends that he has PTSD. The Veteran served in the Republic of Vietnam and has a purple heart. Therefore, the Board concedes that the Veteran had an in-service stressor of fear of hostile military or terrorist activity. Further, the Veteran reports several symptoms of an acquired psychiatric disorder and he linked his violent criminal history with a psychiatric disorder. Therefore, the Board finds that a VA examination is required to determine any current acquired psychiatric disorders and if they are etiologically related to service or his in-service stressor of fear of hostile military or terrorist activity. 
4. Entitlement to service connection for hypertension, claimed as high blood pressure is remanded.
The Veteran contends that his hypertension is related to service. The Veteran was diagnosed with hypertension in March 2007. 
As noted above the Veteran served in the Republic of Vietnam. Thus, the Veteran is presumed to be exposed to an herbicide agent. The Veteran did not state specifically his hypertension is related to exposure to Agent Orange. However, the Veteran stated that he had several conditions related to Agent Orange. Thus, the Board interprets the Veteran’s statement concerning Agent Orange as a statement concerning his hypertension. 
Although there are certain diseases that are presumed incurred by veterans as a result of exposure to herbicide agents, hypertension is not included on the list of presumptive diseases enumerated by the Secretary pursuant to the applicable statute. See 38 C.F.R. § 3.309 (e). Notwithstanding the presumption provisions, a veteran is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the “availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange”). Therefore, an examination is required for an etiological opinion concerning the Veteran’s hypertension.     
5. Entitlement to service connection for a gastrointestinal condition is remanded.
The Veteran contends that his gastrointestinal condition is secondary to his PTSD or some other mental health condition. In March 2007, the Veteran was diagnosed with a duodenal ulcer with an upper gastrointestinal bleed. Therefore, an examination is required to determine whether the Veteran has a current gastrointestinal condition and the etiology of the condition including whether the gastrointestinal condition was caused or aggravated by any acquired psychiatric disorder. 
6. Entitlement to service connection for chloracne skin problems is remanded.
The Veteran contends that his skin condition is related to service and exposure to Agent Orange. Service treatment records note that in September 1969, the Veteran had a growth on the left side of his face was removed. Service treatment records further indicate that the Veteran had a keloid on the left side of his face. In February 1970, service treatment records indicate that the Veteran was treated for pseudofolliculitis. The Veteran’s separation examination indicates that he left service with a small keloid on the left mandible. Therefore, an examination is required to determine whether the Veteran has a current skin condition and if so whether it is related to service or exposure to an herbicide. 
7. Entitlement to service connection for a sleeping disorder is remanded.
The Veteran contends that he has a sleeping disorder that is caused by his acquired psychiatric disorder. The Board notes that there is no evidence of a current sleeping disorder or any evidence an in-service sleeping disorder. However, the Board finds it must tailor assistance to the peculiar circumstances of the Veteran’s confinement by providing an additional opportunity to obtain any of the Veteran’s prison medical records. See Bolton, 8 Vet. App. at 191. If the medical records document a current sleeping disorder, then the RO should obtain a medical opinion as to whether any acquired psychiatric disorder caused or aggravated his sleeping disorder. 
8. Entitlement to service connection for a sinus condition is remanded.
The Veteran contends that he has a current sinus condition and it is related to service. The Board notes that there is no evidence of a current sinus condition or any evidence an in-service sinus condition. the Board finds it must tailor assistance to the peculiar circumstances of the Veteran’s confinement by providing an additional opportunity to obtain any of the Veteran’s prison medical records. See id. If the medical records document a current sinus condition, then the RO should obtain a medical opinion as to whether his sinus condition is related to service. 
The matters are REMANDED for the following action:
1. The RO should make efforts to obtain the necessary examinations discussed below despite the Veteran’s incarceration. The RO should follow the procedures set forth in M21-1, Part III.iv.3.A.9.d. If an examination cannot be obtained using VA examiners, the RO should determine if the medical staff at the correctional facility can provide the Veteran with a medical examination adequate for VA purposes. If the RO is unsuccessful in its attempts to obtain the examinations, an explanation as to why the examinations could not be obtained should be included in the record.
a.	Part of the RO’s attempt to obtain necessary examinations, should include attempts in obtaining the Veteran’s treatment records at the facility he is incarcerated in.
2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left wrist and/or hand disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the left hand and wrist injury with a documented fragment in his wrist and hand.  
3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disability. The examiner must opine as to the following:
(a.) Identify any acquired psychiatric disabilities to include PTSD.
(b.) For each identified acquired psychiatric disabilities, opine as to whether it is at least as likely or not the acquired psychiatric disability related to an in-service injury, event, or disease, to include the Veteran’s conceded in-service stressor of fear of hostile military or terrorist activity. 
(c.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the conceded in-service stressor of fear of hostile military or terrorist activity.  
4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss and tinnitus. The examiner must opine to the following:
(a.) Whether the Veteran currently has a diagnosis of hearing loss.
(b.) Whether any hearing loss is at least as likely as not related to an in-service injury, event, disease, or manifested within one year of separation of service.
a.	The examiner should address any puretone threshold shift from the Veteran’s entrance and separation from service.
b.	The examiner should address the Veteran’s in-service complaint of left ear pain and the February 1969 service treatment note of excess cerumen in his left ear. 
(c.) Whether the Veteran has a diagnosis of tinnitus.
(d.) Whether any diagnosis of tinnitus is at least as likely as not related to in-service injury, event, disease, or manifested within one year of separation of service.
5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension. The examiner should opine as to the following:
(a.) Whether the Veteran has a current diagnosis of hypertension.
(b.) Whether any hypertension is at least as likely as not related to in-service injury, event, or disease, to include exposure to an herbicide; or manifested within one year of separation of service.
6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any gastrointestinal condition to include duodenal ulcers. The examiner should opine as to the following:
(a.) Identity any current gastrointestinal condition, to include duodenal ulcers and an upper gastrointestinal bleed.
(b.) For each gastrointestinal condition identified, opine as to whether the gastrointestinal condition is at least as likely as not related to in-service injury, event, disease, or manifested within one year of separation of service.
(c.) For each gastrointestinal condition identified, opine as to whether any gastrointestinal condition is (1) proximately due to any acquired psychiatric disability, or (2) aggravated beyond its natural progression by any acquired psychiatric disability.
7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin disorder. The examiner should opine as to the following:
(a.) Identify any current skin disabilities.
(b.) For each skin disability, opine as to whether it is at least as likely as not related to in-service injury, event, or disease, to include the in-service removal of a growth on the left side of his face and/or the in-service diagnosis of a keloid on the left side of his face. 
(c.) The examiner should opine as to whether any current skin disorder was at least as likely as not related to exposure to an herbicide. 
8.  Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleeping disorder. The examiner should opine to the following:
(a.) Identify any current sleeping disorders.
(b.) For each current sleeping disorder, opine as to it is at least as likely as not related to in-service injury, event, or disease.
(c.) For each current sleeping disorder, opine as to whether it is at least as likely as not (1) proximately due to any acquired psychiatric disability, or (2) aggravated beyond its natural progression by any acquired psychiatric disability.
9. If the Veteran’s updated treatment records indicate the Veteran has a current diagnosis of a sinus condition, then schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sinus condition. The examiner should opine to the following:
(Continued on the next page)
 
(a.) Identify any current sinus condition.
(b.) For each identified sinus condition opine as to whether it is at least as likely as not related to in-service injury, event, or disease, to include exposure to an herbicide.
 
Keith W. Allen
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Robert Batten, Associate Counsel
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