Citation Nr: 18160845 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 17-08 793 DATE: December 28, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1986 to August 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision. The Board notes that the Agency of Original Jurisdiction (AOJ) attempted to schedule the Veteran for a VA examination while he was incarcerated. However, a June 2016 examination request indicated that audiology examinations could not be conducted at prison facilities because they require a hearing booth for testing and evaluation. Nevertheless, the record does not reflect that the AOJ made adequate efforts to schedule the Veteran for a VA examination. In the case of VA medical examinations, VA does not have the authority to require a correctional institution to release a veteran so that VA can provide him the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711 (2012). However, 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. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995). In this case, there is no indication that efforts were made to determine if the Veteran could be transported to a VA facility for examination. Therefore, a remand is necessary to attempt to schedule the Veteran for a VA examination. In addition, in a February 2016 statement, the Veteran reported that he spoke to a doctor regarding his hearing loss. However, there are no post-service medical records associated with the claims file. Therefore, on remand, the AOJ should attempt to obtain any outstanding medical records. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral hearing loss and tinnitus, to include any correctional facility or jail at which he has been incarcerated. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral hearing loss and tinnitus that may be present. If the Veteran is currently incarcerated, the AOJ should take all reasonable measures to schedule the Veteran for the examination requested and confer with the prison authorities to determine whether the Veteran may be escorted 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. The AOJ should document all attempts taken to schedule the Veteran for a VA examination related to his claims. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted 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. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has current bilateral hearing loss and tinnitus that manifested in or are otherwise causally or etiologically related to his military service, including any noise exposure therein. In rendering this opinion, the examiner should address whether there was a threshold shift during service and the significance, if any, of the existence or absence of such a shift. The examiner should further discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. The examiner should also provide an opinion as to whether it is at least as likely as not that any tinnitus is caused by or aggravated by any hearing loss. (The term “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 conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel