Citation Nr: 18140312 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 09-46 952A DATE: October 2, 2018 REMANDED Entitlement to service connection for tinnitus, right ear, is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans’ Affairs (VA). In an October 2017 remand decision, the Board referred a claim for an earlier effective date for the award of service connection for bilateral pes planus; a claim to reopen entitlement to service connection for a right hand disability; and a claim of entitlement to an annual clothing allowance for medically prescribed shoes. Review of the electronic record indicates that the RO has not taken any action on these claims. Accordingly, these claims are again REFERRED to the RO for appropriate action. 38 C.F.R. § 19.9(b). In the October 2017 Board remand, it was decided that the VA’s duty to assist in providing a VA examination had been triggered regarding the Veteran’s claim of entitlement to service connection for tinnitus, right ear. The Veteran is currently incarcerated, and VA’s duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, as those individuals are entitled to the same care and consideration given to non-incarcerated veterans. Wood v. Derwinski, 1 Vet. App. 190 (1991). Record evidence establishes that the Veteran’s prison was unable to transport him to a local VA facility for a VA examination, and the prison did not otherwise have the facilities to conduct audiological testing. While noting that audiological testing was the preferred method for claims involving tinnitus, VA personnel suggested that a VA examiner could review the Veteran’s electronic claims file and issue a medical nexus opinion based solely on assessment of the record. Accordingly, the Board remanded the claim to allow a VA examiner to review the Veteran’s electronic claims file and issue a medical nexus opinion. The Board determined that audiological testing was unnecessary given the circumstances, and left the need for a personal interview of the Veteran to the discretion of the VA examiner. In February 2018, a VA examiner reviewed the Veteran’s electronic claims file, but concluded that a medical opinion regarding the etiology of the Veteran’s tinnitus, right ear, could not be provided without resorting to speculation. The examiner explained: Only an entrance audiogram is available in the [service treatment records]. No exit audiogram was found so it is unknown if any significant change in hearing occurred during [the Veteran’s] time in service. It is also unknown if the Veteran has current hearing loss. There is no report of tinnitus found in the [service treatment records] and the date and circumstances of onset of the claimed tinnitus are unknown as the Veteran is not available to provide that information. While the Board acknowledges that the October 2017 Board remand left the need for a personal interview of the Veteran to the discretion of the examiner, it is clear from the examiner’s report that an interview with the Veteran was necessary to obtain missing information that would allow the examiner to render a fully informed opinion. The examination report noted that the Veteran was incarcerated and unavailable for an interview; however, there is no indication that the examiner inquired with RO personnel regarding the feasibility of conducting an interview with the Veteran. In fact, the electronic claims file does not contain any indication that VA personnel attempted to contact the Veteran’s prison or schedule an interview with the Veteran. As the February 2018 VA examiner could not render an opinion without resorting to speculation based largely on the fact that she was unable to obtain relevant information from the Veteran, the Board finds a remand is warranted for further evidentiary development. Accordingly, RO personnel are requested to take the necessary measures to schedule a telephonic interview between the Veteran and the February 2018 VA examiner (or another appropriate VA examiner, if the February 2018 VA examiner is unavailable). The RO is instructed to fully document its efforts to schedule such an interview in the electronic claims file. If a telephonic interview is possible, the VA examiner is requested to conduct such an interview and obtain the missing information necessary to assess the etiology of the Veteran’s right ear tinnitus prior to issuing an addendum medical nexus opinion. The matter is REMANDED for the following action: 1. Undertake reasonable efforts to schedule a telephonic interview between the Veteran and the February 2018 VA examiner (or another appropriate VA examiner, if the February 2018 VA examiner is unavailable). All efforts to schedule this interview must be fully documented in the electronic claims file. 2. Proceed to directive #3 ONLY IF an interview is possible. If an interview is not possible, proceed to directive #4. 3. Following an interview with the Veteran, and a complete review of the electronic claims file, the VA examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right ear tinnitus began during, or was otherwise caused by, his active military service? 4. If an interview with the Veteran is not possible, the RO should return the case to the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel