Citation Nr: 18160487
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 10-16 740
DATE:	December 28, 2018
ORDER
Entitlement to a total disability based on individual unemployability (TDIU) beginning June 26, 2015, is denied.
REMANDED
Entitlement to service connection for a kidney condition is remanded.
Entitlement to service connection for damages to the testicles is remanded.
Entitlement to service connection for deformity of the bladder is remanded.
Entitlement to service connection for a prostate condition, to include as secondary to deformity of the bladder, is remanded.
Entitlement to service connection for a gastrointestinal (GI) condition, to include problems of the stomach and small and large intestines, is remanded.
Entitlement to service connection for left lower extremity radiculopathy, as due to service-connected L1 and L2 disability, is remanded.
Entitlement to an extraschedular rating for residuals of three broken ribs, left side, diastasis symphysis pubis, and fracture of the transverse process of L1 and L2 with sciatic nerve on the right side, is remanded.
Entitlement to a TDIU prior to June 26, 2015, is remanded.
FINDING OF FACT
The Veteran has been incarcerated since June 26, 2015 due to a felony conviction at an Illinois Department of Corrections facility and is expected to remain incarcerated indefinitely.
CONCLUSION OF LAW
Beginning October 16, 2014, the criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5107, 5313(c); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16, 4.19.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 1980 to May 1983.  The Veteran is currently incarcerated.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the claims for service connection for the kidney, testicles, bladder, prostate, and GI conditions.
The Veteran failed to report for a requested Board hearing in March 2010 and has not shown good cause.  His hearing request is deemed withdrawn.  38 C.F.R. §§ 20.702(d), 20.704(d).
In February 2015, the Board added the claims for service connection for radiculopathy as due to the Veteran’s service-connected fracture of the transverse process of L1 and L2 with sciatic nerve on the right side and for consideration of an extraschedular rating.  The Board then remanded these matters as listed above, for further development.  Regrettably, these matters require additional development, in part due to his current circumstances, and in part due to the fact it was not substantially complied with.  Another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998). 
In the prior remand, the Board also added a claim for a TDIU, as it was raised by the evidence of record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Since then, the Veteran was incarcerated with a felony conviction beginning June 26, 2015, and is expected to remain incarcerated for a period of time indefinitely.  As a matter of law, the Board will address this claim as of the date of incarceration.
The Veteran is no longer represented in these matters.  He was previously represented by a private attorney, but notified the Board in a January 2016 correspondence that he no longer has representation.  See 38 C.F.R. § 14.631(f)(1).
Finally, additional evidence was added to the file following the supplemental statement of the case issued in January 2018.  However, a waiver is not necessary as this evidence is essentially duplicative of evidence that had been previously submitted and considered by the Agency of Original Jurisdiction.  See 38 C.F.R. § 20.1304.
Entitlement to a TDIU beginning June 26, 2015.
Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In addition, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits.  Akles v. Derwinski, 1 Vet. App. 118 (1991).  In this case, he is in receipt of a total disability rating for his combined service-connected disabilities, effective January 30, 2016.
However, specific provisions for a TDIU apply to incarcerated Veterans.  Section 5313 clearly provides that the Secretary shall not assign to any veteran a rating of total disability based on the individual unemployability of the veteran resulting from a service-connected disability during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.  38 U.S.C. § 5313(c) (emphasis added); see also 38 C.F.R. § 3.341(b); VAOPGCPREC 13-97 (Apr. 7, 1997) (finding that § 3.341(b) prohibits assignment of a new TDIU rating during a veteran’s period of incarceration).  As such, entitlement to a TDIU may be denied as a matter of law if the TDIU rating would be assigned during a period of incarceration for a felony.
In this case, the evidence of record reflects that the Veteran is currently incarcerated due to a felony conviction.  See July 2017 prison/convict information.  As a result of his sentence, the Veteran will remain incarcerated for the foreseeable future.  As such, the Veteran’s claim for entitlement to TDIU and SMC consideration is not warranted as a matter of law.
REASONS FOR REMAND
At the outset, information in the file indicates that the Veteran applied for and was denied disability benefits from the Social Security Administration (SSA).  These records are not associated with the claims and may be potentially relevant to the claims on appeal.  38 C.F.R. § 3.159.  A remand is required so that all SSA records may be obtained. 
1. Entitlement to service connection for a kidney condition; deformity of the bladder; damages to the testicles; and a prostate condition, to include as secondary to deformity of the bladder, is remanded.
2. Entitlement to service connection for a gastrointestinal (GI) condition, to include problems of the stomach and small and large intestines is remanded.
The Veteran seeks service connection for these conditions and asserts they were caused by an in-service motor vehicle accident in May 1982.
He was afforded a VA examination in July 2007 for his genitourinary (GU) and GI conditions.  However, the Board deemed the examinations inadequate and remanded these claims for service connection in February 2015 to schedule VA examinations to determine their nature and etiology.  See February 2015 Board remand.
Soon after the remand was issued, the Veteran was sentenced for a felony conviction and incarcerated indefinitely, effective June 26, 2015.  VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him or her with the necessary examination at the closest VA medical facility.  See 38 U.S.C. § 5711.  Nevertheless, VA’s duty to assist an incarcerated veteran includes: (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 work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination.  See Bolton v. Brown, 8 Vet. App. 185, 191 (1995).
When the RO attempted to schedule a VA examination in November 2015, the correctional facility denied the request.  The evidence of record showed that he was subsequently able to attend VA examinations for other service connection claims.  As such, the Board is remanding the claims again in order to afford the Veteran these examinations. 
3. Entitlement to service connection for left lower extremity radiculopathy, is remanded.
While delay is regrettable, further development of this issue is necessary because there was not substantial compliance with the Board’s remand directives.
In relevant part, the Board directed the RO to arrange for a VA examination to determine the current severity and clarify whether neurologic symptoms are present for the left lower extremity.  However, the record reflects that a request was made only to determine the current severity of the service-connected right lower extremity radiculopathy, in November 2017.  The December 2017 VA examiner provided a physical examination that included the left lower extremity, but without a medical opinion.  As such, the Veteran should be afforded a new VA examination on remand.
4. Entitlement to an extraschedular rating for residuals of three broken ribs, left side, diastasis symphysis pubis, and fracture of the transverse process of L1 and L2 with sciatic nerve on the right side, is remanded.
As the outstanding SSA medical records may impact a decision on this claim, adjudication of this matter is deferred.
5. Entitlement to a TDIU prior to June 26, 2015, is remanded.
Finally, because a decision on the claims of service connection could significantly impact a decision for a TDIU prior to June 26, 2015, the issues are inextricably intertwined and adjudication deferred.
The matters are REMANDED for the following action:
1. Obtain the Veteran’s federal records from SSA.  Document all requests for information, as well as all responses in the claims file.
2. Schedule the Veteran for a VA examination by an examiner, with sufficient expertise to determine the nature and etiology of any currently present kidney, testicle, bladder, or prostate disability, to include consideration of the Veteran’s in-service motor vehicle accident in May1982 and records indicating treatment for the prostate.  The claims file and copies of this and the February 2015 Remand must be made available to and reviewed by the examiner.  All indicated studies should be performed.
The Veteran’s VA examinations should be scheduled pursuant to procedures for incarcerated Veterans, as necessary.  See 38 U.S.C. § 5711; Bolton, supra.  (If the RO is unable to afford the Veteran an examination due to his incarceration, document in detail all of the steps taken in attempting to do so and arrange for a medical opinion by an appropriate VA examiner.) 
a) Based on the examination results and a review of the record, the examiner should provide a diagnosis regarding any kidney, testicle, bladder, or prostate disability that the Veteran currently has.  
b) Then, the examiner should provide an opinion as to whether any such disability at least as likely as not (50 percent or greater probability) had its onset during, or is etiologically related to, the Veteran’s military service, including the May 1982 motor vehicle accident.
c) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified prostate disability was either (a) caused by, or (b) aggravated by any of the Veteran's service-connected disabilities.
A fully-explained rationale for the requested opinions should be provided.  If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so.
3. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present GI disability, to include consideration of the Veteran’s in-service motor vehicle accident in May 1982 and records indicating abdominal pain, to include September 1991 VA treatment records.  The claims file and a copy of the this and February 2015 Remand must be made available to and reviewed by the examiner.  All indicated studies should be performed.
The Veteran’s VA examinations should be scheduled pursuant to procedures for incarcerated Veterans, as necessary.  See 38 U.S.C. § 5711; Bolton, supra.  (If the RO is unable to afford the Veteran an examination due to his incarceration, document in detail all of the steps taken in attempting to do so and arrange for a medical opinion by an appropriate VA examiner.)
Based on the examination results and a review of the record, the examiner should provide a diagnosis regarding any GI disability that the Veteran currently has.  Then, the examiner should provide an opinion as to whether any such disability at least as likely as not (50 percent or greater probability) had its onset during, or is etiologically related to, the Veteran’s military service, including as due to the May 1982 motor vehicle accident.
A fully-explained rationale for the requested opinions should be provided.  If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so.
4. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present radiculopathy in the left lower extremity related to the Veteran’s service-connected L1 and L2 disability.  The claims file and a copy of this remand must be made available to and reviewed by the examiner.  All indicated studies should be performed.
The Veteran’s VA examinations should be scheduled pursuant to procedures for incarcerated Veterans, as necessary.  See 38 U.S.C. § 5711; Bolton, supra.  (If the RO is unable to afford the Veteran an examination due to his incarceration, document in detail all of the steps taken in attempting to do so and arrange for a medical opinion by an appropriate VA examiner.)
a) Based on the examination results and a review of the record, the examiner should provide a diagnosis regarding any radiculopathy that the Veteran currently has.  
b) Then, the examiner should provide an opinion as to whether any such disability at least as likely as not (50 percent or greater probability) was either (a) caused by, or (b) aggravated by any of the Veteran’s service-connected disabilities, and opine on the significance of the left lower extremity radiculopathy results reported in the August 2013 VA examination.

(Continued on the next page)
 
A fully-explained rationale for the requested opinions should be provided.  If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so.
 
TRACIE N. WESNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Tang, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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