Citation Nr: 1328123
Decision Date: 09/04/13	Archive Date: 09/24/13

DOCKET NO. 09-37 865	)        DATE	SEP 04 2013)

On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUES

1. Entitlement to service connection for a chronic headache disorder.

2. Entitlement to service connection for bilateral hearing loss.

ATTORNEY FOR THE BOARD 

John Kitlas, Counsel

INTRODUCTION

The Veteran served on active duty from February 1977 to May 1980 and from October 1981 to April 1984. Further, the record indicates he had additional service in the Reserves.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the current appellate claims. The RO in Montgomery, Alabama, currently has jurisdiction over the Veteran's VA claims folder.

The Board notes that the Veteran's Notice of Disagreement (NOD) also referred to other issues adjudicated by the May 2007 rating decision, and these issues were included as part of the June 2009 Statement of the Case (SOC). However, as part of his August 2009 Substantive Appeal, the Veteran affirmatively indicated that he only wanted to continue his appeal regarding the headaches and hearing loss claims. Accordingly, these are the only issues over which the Board currently has jurisdiction. See 38 C.F.R. §§ 20.200, 20.202 (2012).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.

REMAND

The Board notes that the Veteran indicated that he was treated for both headaches and hearing loss through the Alabama Department of Corrections (ADOC), and provided a release for such records dated in March 2008. As such, the Board finds that this case must be remanded to physically or electronically associate those records with the claims folder.

As to the Veteran's headache disorder claim, the service treatment records show that he was seen on numerous occasions for complaint and treatment of headache complaints, which were attributed to various causes. Apparently based on this, the May 2012 VA examiner opined that the Veteran's headache disorder was not related to nor had its onset in service.

The Board notes, however, that the Veteran has competently reported having chronic and recurrent headaches since 1977, i.e., the disorder had its onset in service. Further, the Report of Medical History, dated in March 1984, conducted for the Veteran's separation from service, reflects that he reported having frequent

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or severe headaches. As such, the Board finds that another VA examination is necessary so that the examiner can consider the Veteran's competent lay report of having recurrent headaches since service.

As to his hearing loss claim, for the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160.

An examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). In this case, no audio examination is of record in accord with 38 C.F.R. § 4.85(a) that shows a hearing loss disability as defined by 38 C.F.R. § 3.385. The record reflects the RO determined that an examination was necessary in this case as one was scheduled for December 2011, but was canceled due to the Veteran's incarceration with ADOC. The record indicates that an examination was supposed to be conducted in May 2012 at ADOC, at the same time as the headaches examination, but no such examination was actually conducted. Further, the circumstances as to why the examination was not conducted is unclear. Written comments to the examination report indicate that the Veteran refused the examination. However, the June 2012 Supplemental SOC (SSOC) stated the VA examiner was unable to examine the Veteran's hearing while incarcerated due to the need for audiometric testing equipment. Moreover, it is not clear from this notation whether such equipment was not available at that time, or

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whether the nature of the Veteran's incarceration was such that this equipment could not be used as long as he remained incarcerated.

In determining that VA examinations are necessary, the Board is cognizant that, at last report, the Veteran was incarcerated. The Board points out, however, that the United States Court of Appeals for Veterans Claims (Court) has long held that incarcerated Veterans are entitled to the same care and consideration given to their fellow Veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)). Further, 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.

As such, on remand, the RO should determine whether the Veteran continues to be incarcerated. Thereafter, the RO must either afford him a formal VA examinations, or if that is not possible, coordinate efforts with the correctional facility to accommodate the Veteran by arranging for an examination to be conducted at the correctional facility at which he is incarcerated to determine whether it is at least as likely as not that his headache disorder and/or hearing loss is related to or had its onset in service.

If the Veteran remains incarcerated and if it is not possible to have him examined at the prison facility, depending on when he is scheduled to be released, in light of Bolton and Wood, the Board concludes that a VA examiner should review the Veteran's medical records and opine as to whether it is at least as likely as not that his headache disorder and/or hearing loss is related to or had its onset in service.

Accordingly, the case is REMANDED for the following action:

1. Obtain the names and addresses of all medical care providers who have treated the Veteran for headaches and hearing loss since his military service. This must specifically include follow-up on the Veteran's account of treatment through the Alabama Department of

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Corrections. After securing any necessary release, obtain those records not on file.

2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have firsthand knowledge, and/or were contemporaneously informed of his in-service and post-service headache and hearing loss symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3. After obtaining any additional records to the extent possible, the Veteran should be afforded an appropriate VA examination to determine whether it is at least as likely as not that he has a headache disorder that is related to or had its onset in service. The claims folder should be made available and reviewed by the examiner and all necessary tests should be conducted.

The examiner must then opine as to whether it is at least as likely as not that the Veteran has a headache disorder that is related to or had its onset in service. In offering this impression, the examiner must acknowledge and discuss the Veteran's report of having frequent or severe headaches at separation from his second period of service and his competent report of having headaches since 1977.

If the Veteran remains incarcerated and a VA examination cannot be performed, the RO should arrange for the Veteran's claims folder reviewed by an appropriate VA examiner.

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All findings and conclusions should be set forth in a legible report.

4.	After obtaining any additional records to the extent
possible, the Veteran should be afforded an audio
examination in accord with 38 C.F.R. § 4.85(a) to
evaluate the current nature and etiology of his purported
hearing loss. The claims folder should be made
available to the examiner for review before the
examination.

Following evaluation of the Veteran, the examiner should express an opinion as to whether it is at least as likely as not that this disability was incurred in or otherwise the result of active service.

If the Veteran remains incarcerated and a VA examination cannot be performed, the RO should arrange for the Veteran's claims folder reviewed by an appropriate VA examiner.
A complete rationale for any opinion expressed must be provided.

5.	After completing any additional development
deemed necessary, readjudicate the appeal in light of
any additional evidence added to the records
assembled for appellate review. If the benefit sought
on appeal is not granted, the RO should issue a
Supplemental Statement of the Case and provide the
Veteran an opportunity to respond.

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The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).

STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).

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