Citation Nr: 1633738 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 06-24 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected peripheral vestibular disorder and/or tinnitus. 2. Entitlement to an initial compensable rating for epistaxis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from May 2000 to September 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from November 2004 and February 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for bilateral hearing loss was previously remanded by the Board in September 2009, May 2011, and January 2013. The Board denied the claim of entitlement to service connection for bilateral hearing loss in a June 2014 decision. The Veteran appealed the June 2014 Board determination to the United States Court of Appeals for Veterans Claims (Court). In January 2015, the Court issued an order granting the parties' Joint Motion for Partial Remand, vacating that part of the Board's decision that denied the claim of entitlement to service connection for hearing loss and remanding the case back to the Board. The Board again remanded the issue in February 2015. Of note, in the June 2014 decision, the Board remanded the claim of entitlement to an initial compensable rating for epistaxis for the issuance of a statement of the case (SOC). The Board again remanded this claim in February 2015, for failure to issue the SOC. A SOC was issued in March 2016, and the Veteran's VA Form 9 was received in April 2016. As such, a substantive appeal has been completed and this issue is now before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for bilateral hearing loss and entitlement to an initial compensable rating for epistaxis. Regarding the Veteran's claim for service connection for bilateral hearing loss, inasmuch as the Board sincerely regrets another remand of this matter, the development directed by the Board in its last remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the February 2015 Board Remand, the parties to the January 2015 Joint Motion for Partial Remand (JMR) determined that a remand is necessary in order to obtain an additional etiology opinion. The JMR noted that examinations dated in October 2004, April 2007, December 2009, June 2011, and March 2013 included audiological test results that were invalid and unreliable due to inconsistent and unrepeatable responses. The parties concluded that the audiological testing administered to the Veteran thus far does not produce sufficient evidence to adjudicate the claim. The parties indicated that a VA Training Letter (TL), titled, "Adjudicating Claims for Hearing Loss and/or Tinnitus, "dated March 18, 2010, identifies four types of hearing loss: conductive, sensorineural, mixed, and central hearing loss. The TL provides that central hearing loss" is a rare condition that results from disease or injury of the brain...that...cannot be detected by routine audiological tests, but requires special types of testing. An individual with central hearing loss may be able to perceive sounds but has problems such as difficulty recognizing and interpreting the sounds, even when peripheral hearing is normal...Veterans with a head injury (traumatic brain injury) may exhibit similar auditory complaints." VA TL 10-02 at 3-4. The parties found that considering that the previous five basic audiometric tests produced unreliable results, and the fact that the Veteran is service connected for peripheral vestibular disorder and tinnitus (both being inner ear conditions), VA's examination report should have included appropriate testing for other types of hearing loss as indicated in VA TL 10-02. Consequently, the Veteran must be provided with a medical examination in accordance with the instructions provided in VA TL 10-02, with the VA audiologist being mindful of the Veteran's service-connected conditions of peripheral vestibular disorder and tinnitus. To date, this has not been accomplished. On remand, the Veteran should be afforded a VA examination, appropriate testing should be conducted, and a medical opinion should be obtained. The Veteran also seeks entitlement to an initial compensable rating for epistaxis. The VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened, or in cases where the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Here, the most recent VA examination afforded to the Veteran for this disability was conducted in June 2011, more than five years ago. The Veteran has asserted that his disability has worsened. See July 2016 Post-Remand Brief. The Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Additionally, all updated treatment records should be obtained and associated with the claims file. The Board notes that the Veteran is currently incarcerated. See June 2015 Prison/Convict Information. However, his incarceration does not negate VA's statutory obligation to assist in the development of his claims. 38 U.S.C.A. § 5103A (West 2014). Further, the United States Court of Appeals for Veterans' Claims (the Court) has indicated that even though incarcerated, a Veteran should be accorded the same assistance as his fellow, non-incarcerated Veterans. See Bolton v. Brown, 8 Vet. App. 185 (1995). While VA does not have the authority under 38 U.S.C.A. § 5711 (West 2014) 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 a request to have him examined by a fee-basis physician or requesting a VA physician to examine him at the prison where he resides. Bolton, 8 Vet. App. at 191. The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated Veterans. The manual calls for the AOJ or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether VHA personnel should escort the Veteran to a VA medical facility for examination. 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. The AOJ should undertake to provide the Veteran examinations in accordance with these provisions. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Take all reasonable measures to schedule the Veteran for the examinations requested below. This includes determining the appropriate prison official with the authority to make a decision on this matter and obtaining a definitive answer from that official. Confer with the appropriate official to determine whether the Veteran may be escorted to a VA medical facility for examination. See M21-1, Part III.iv.3.A.11.d. If that is not possible, address the feasibility of scheduling the Veteran at the prison by (1) VHA personnel; (2) prison medical providers at VA expense with an appropriate Disability Benefits Questionnaire (DBQ); or (3) fee-basis providers contracted by VHA. If such examination is feasible, the examinations should be scheduled at the prison. If none of the options are feasible, fully explain why none of the examinations could be scheduled. 3. Schedule the Veteran for a VA audiology examination. The examiner should review the claims file and note that review in the report. The examiner should elicit a complete history from the Veteran, the details of which should be included in the examination report. The examiner should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible. In addition to the service treatment records, the examiner should consider the Veteran's statements regarding his symptoms in service and his statements of hearing loss since service. Pursuant to the JMR, the examiner should conduct appropriate testing for other types of hearing loss as indicated in VA TL 10-02 in light of the Veteran's service-connected conditions of peripheral vestibular disorder and tinnitus. Following administration of any necessary testing, examination and interview of the Veteran, and review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss either began during or was otherwise caused by the Veteran's military service, to include the documented motor vehicle accident. The examiner should also state whether any current hearing loss is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated (beyond a natural progression) by the Veteran's service-connected vestibular disorder and/or tinnitus. The examiner should include in the examination report the complete rationale for any opinion expressed. If the examiner is unable to address any inquiry sought above, then he or she should explain why. If the examiner indicates that an opinion cannot be supplied "without resorting to mere speculation," the examiner is asked to indicate whether this is because further information would be needed or because the limits of medical knowledge have been exhausted. If further information is needed, the examiner should specify exactly what further information is necessary. 4. Afford the Veteran a VA examination to determine the current severity of his epistaxis. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should identify and completely describe all current symptomatology. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Ask the examiner to discuss all findings in terms of 38 C.F.R. § 4.97, Diagnostic Code 6502. The pertinent rating criteria must be provided to the examiner. 5. The RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. 7. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 8. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).