Citation Nr: 1338959 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-10 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active military service from August 1974 to August 1977. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC, to try and further develop them before they are decided on appeal. REMAND The Veteran is currently incarcerated. As part of the adjudication of his claims, VA attempted to schedule a VA compensation examination to assist in determining the nature and etiology of his claimed disabilities - particularly insofar as their purported relationship with his military service. A review of the record indicates that VA first attempted to schedule the examination in April 2011, but was unable to due to difficulties in communication with the correctional facility where the Veteran is being maintained. VA made another attempt in April 2012, but was informed by personnel at the correctional facility that it would not transport the Veteran to an examination and were unwilling to allow an examiner to come to the facility to perform an examination. 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. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). In this case, only options (1) and (3) have been precluded by the correctional facility. It is unclear whether option (2) is still a viable alternative. Notably, the record shows the Veteran has been treated for various conditions, albeit not hearing loss or tinnitus. Nonetheless, in accordance with the duty to assist, VA should make appropriate inquiries with the correctional facility to determine whether its in-house medical personnel are willing and able to perform the necessary VA compensation examination. VA should also attempt to obtain the Veteran's treatment records from the correctional facility. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Obtain the Veteran's treatment records from the Ashland, Kentucky, Federal Correctional Institution Satellite Camp. If an authorization from the Veteran is necessary to obtain these records, provide him with the required authorization forms. 2. Again contact the correctional facility where the Veteran is incarcerated, this time however to determine the feasibility of having its own medical personnel conduct an audiological examination of him. All attempts to arrange this examination should be documented in the claims file. The Board realizes that, ultimately, this is the decision of the prison warden or other appropriate official, so is not meaning to imply that the correctional facility has to examine the Veteran. Indeed, this is entirely within the discretion of the officials there. The Board is only trying to ensure that all possibilities of having the examination are exhausted. If an examination can be arranged, it should be specifically indicated whether the Veteran has hearing loss to an extent recognized as a ratable disability for VA compensation purposes; i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or an auditory threshold for at least three of these frequencies of 26 decibels or greater; or a speech recognition score using the Maryland CNC Test of less than 94 percent. The examiner should also obtain a history from the Veteran regarding the nature and frequency of his hearing loss and tinnitus symptoms, and specifically indicate whether the Veteran in fact has tinnitus based on his description of symptoms. If it is confirmed the Veteran has a ratable hearing loss disability according to these threshold minimum requirements of 38 C.F.R. § 3.385, also tinnitus, then additional medical comment is needed regarding the etiologies of these conditions, especially insofar as the likelihood (very likely, as likely as not, or unlikely) they are related or attributable to his military service. The examiner must provide explanatory rationale for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. The examiner should address the Veteran's service treatment records (STRs) and post-service history of noise exposure. If the examiner is unable to render the requested opinions without resorting to mere speculation, he or she should so state, but even more important is to discuss why a response is not possible or feasible. 3. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran a supplemental statement of the case (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2013). _________________________________________________ KEITH W. ALLEN 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) (2013).