Citation Nr: 1805404 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-16 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from August 1971 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Oakland, California (RO). In April 2016, the Board remanded this matter for further development and the case has been returned for appellate consideration. As discussed below, the Board finds that there has not been substantial compliance with its April 2016 remand and, therefore, it may not proceed with a determination on the merits at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its April 2016 remand, the Board directed the AOJ to exhaust all possible avenues for providing this incarcerated veteran a VA audiology examination. Because the AOJ did not document the exploration of using a fee-based provider contracted by VHA that had portable equipment, the Board finds that there was not substantial compliance with its April 2016 remand. A remand by the Board confers on the Veteran, as a matter of law, the right to have compliance with the remand directives, and the Board has a duty to ensure such compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing incomplete development in this claim, the Board must remand this matter again. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In an April 2017 letter from the Palo Alto Health Care System to the Oakland RO, the health care system stated that it had confirmed that the prison's equipment for audiological testing did not meet regulatory requirements for Compensation and Pension audiology examinations. It stated that "[n]o portable audiology equipment/facility is owned by VHA which could be transported to [the prison] to complete the requested examination." It does not appear that the health care system considered using a fee-based provider contracted by VHA that owned the requisite equipment. According to the printout of a December 2016 examination request processed using the C&P Examination Request Routing Assistant (ERRA), which schedules examinations based upon the ZIP code of the claimant, "[t]he contract examination vender MSLA is associated with this ZIP code." Therefore, action is needed on remand to make further attempts to schedule the Veteran for an examination to assess the etiology of his bilateral hearing loss and tinnitus. Furthermore, treatment records from the prison may be outstanding and, on remand, another attempt should be made to obtain them. Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, obtain any identified treatment records reflecting treatment for bilateral hearing loss or tinnitus, to include treatment records from the prison. 2. Take all reasonable measures to schedule the Veteran for the examination requested below in item 3 utilizing the services of a fee-based provider contracted by VHA that has portable equipment meeting regulatory requirements for Compensation and Pension audiology examinations. Confer with the appropriate prison officials to determine the feasibility of scheduling the Veteran for an examination in this manner. If such examination is feasible, the examination should be scheduled at the prison. If this is not a feasible option, fully explain why this examination could not be scheduled. 3. If it is possible for the Veteran to be examined, then schedule the Veteran for an appropriate audiological examination (to include audiometric studies) to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus. The entire claims file (i.e., the Veteran's VBMS eFolder and any relevant medical records in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. The audiometry examination must include a speech recognition test using the Maryland CNC wordlist and a puretone audiometry test. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner should respond to the following questions: a) If the record reflects the Veteran has hearing loss by VA standards (see 38 C.F.R. § 3.385), then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss was caused by noise exposure incurred during active duty? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus was caused by noise exposure incurred during active duty? For purposes of these questions, the examiner should consider the Veteran's statements that he was exposed to noise from constant and continual small arms and artillery fire in his military occupational specialty of Field Artillery Basic. In rendering these opinions, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner should note that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).