Citation Nr: 21070856 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-39 125 DATE: November 26, 2021 REMANDED 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for right ankle surgical scars is remanded. 4. Entitlement to service connection for impotence is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent for right ankle strain is remanded. 6. Entitlement to an initial compensable disability rating for penis deformity is remanded. REASONS FOR REMAND The Veteran had active service from June 1976 to July 1977. These matters were previously remanded by the Board in November 2018 in order to afford the Veteran relevant VA examinations in conjunction with his claims on appeal. As discussed below, the Board finds that there has not been substantial compliance with prior remand directives, such that an additional remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for right ankle surgical scars is remanded. 4. Entitlement to service connection for impotence is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent for right ankle strain is remanded. 6. Entitlement to an initial compensable disability rating for penis deformity is remanded. The United States Court of Appeals for Veterans Claims (Court) has specifically addressed VA's duty to assist incarcerated veterans in cases where a VA examination is warranted. Specifically, the Court has cautioned "those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans." See Bolton v. Brown, 8 Vet. App. 185 (1995) (citing Wood v. Derwinski, 1 Vet. App. 190 (1991)). In Bolton, the Court remanded a case where the RO claimed an inability to get a fee-basis physician to conduct an examination at a correctional facility. In that case, further efforts were deemed necessary to attempt to examine that Veteran. 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. 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, 8 Vet. App. at 191. Additionally, the Board is mindful that the VA Adjudication Procedures Manual (VBA Manual M21-1) contains provisions for scheduling examinations of incarcerated veterans. VBA Manual M21-1 calls for the AOJ or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether a veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, a 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 VBA Manual M21-1, III.iv.3.A.11.d. The record reflects that at the time of the prior Board remand, the Veteran was incarcerated at James Crabtree Correctional Center in Oklahoma. Prior VA examinations have been repeatedly scheduled and either delayed due to COVID-19 protocols or cancelled due to the Veteran being deemed "unavailable." However, as previously noted in a March 2020 deferred rating decision, it was unclear if this was due to a transport issue or if there was some restriction to the movement of and access to the Veteran due to his incarceration. In any event, the Board notes that since that time, the Veteran was transferred to the Augusta Correctional Center in Craigsville, Virginia. In July 2021, the Veteran notified VA that he had been transferred, and VA initiated its most recent request to schedule the Veteran for the relevant VA examinations. Therein, it was specifically noted that "VBA contract examination vendors are required to provide documentation that they have made substantial attempts to schedule and conduct the examination, and exhausted all possible avenues for obtaining access to the incarcerated Veteran for the examination." However, it is unclear whether the Agency of Original Jurisdiction (AOJ) ever corresponded with the Augusta Correctional Center to determine whether the medical personnel at the correctional facility could conduct an examination in accordance with VA examination worksheets and/or whether a VA examiner could perform the examination at the facility, and the claims file does not document any response from the facility. Moreover, the matters were subsequently recertified to the Board without completion of the requested development. Thus, the Board finds that there has not been substantial compliance with prior remand directives, such that an additional remand is warranted to fully comply with the duty to assist and for the AOJ to take further steps to determine whether the requested examinations can be scheduled at the Augusta Correctional Center consistent with the provisions set forth above. As noted in the prior Board remand, the issue of entitlement to service connection for right ankle surgical scars is inextricably intertwined with the increased rating claim for right ankle strain, and the issue of entitlement to service connection for impotence is inextricably intertwined with the claim for an initial compensable rating for penis deformity. As such, remand of these claims is also warranted in light of the requested development. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Attempt to afford the Veteran, who is currently incarcerated in the Augusta Correctional Center in Craigsville, Virginia, the previously-requested medical examinations concerning his claims on appeal, as discussed further below. The AOJ or the local VHA Medical Examination Coordinator should confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel. 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. If the Veteran is unavailable for examination after following those procedures, document in detail all of the steps taken in attempting to conduct the requested examinations. 2. Schedule the Veteran for a VA audiology examination regarding his claims for service connection for a bilateral hearing loss disability and tinnitus. The VA examiner should fully review the claims file and the directives of this remand. Any indicated diagnostic tests and studies must be accomplished, and all pertinent symptomatology and findings should be reported in detail. The examiner should then opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current bilateral hearing loss and/or tinnitus is related to his active service. Please state upon what facts and medical principles and/or medical literature the opinion is based. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected right ankle sprain. The entire claims file should be reviewed by the examiner in conjunction with the examination, after which the examiner should perform any indicated studies and provide all information required for rating purposes. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's right ankle disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include and record the range of motion for the right ankle and any undamaged paired joint in active motion, passive motion, weight-bearing, and nonweight-bearing. The degree at which pain begins must be documented. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A detailed rationale for the opinions must be provided. If the examiner is unable to offer a 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. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected penis deformity. The entire claims file should be reviewed by the examiner in conjunction with the examination, after which the examiner should perform any indicated studies and provide all information required for rating purposes. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's penis deformity. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.