Citation Nr: 21076786 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-20 980 DATE: December 27, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right shoulder disorder is granted. REMANDED Entitlement to service connection for a neurological condition of the bilateral feet and/or cold injury residuals of the bilateral feet is remanded. FINDINGS OF FACT 1. The Veteran has tinnitus that began during active duty service. 2. The Veteran has a right shoulder strain that resulted from injuries incurred during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right shoulder disorder are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from March 1991 through November 1998. Pursuant to a May 2011 administrative decision, the Veteran also had a period of service from November 1998 through September 2003 under conditions that are dishonorable for VA purposes. The issues on appeal arise from claims received from the Veteran in January 2012 (for right shoulder and bilateral feet) and in May 2014 (for tinnitus). The Veteran appeals denials of those claims expressed in rating decisions issued by the agency of original jurisdiction (AOJ) in February 2013 and in December 2014 respectively. The issues have been remanded previously by the Board. The AOJ has taken steps to complete the development ordered in those remands. The matter now returns to the Board for review. Service Connection 1. Entitlement to service connection for tinnitus. The Veteran contends in his May 2014 claim and other claims submissions that he experiences ringing in his ears (i.e., tinnitus) that he attributes to acoustic trauma incurred during service. During an October 2016 examination, he added that his tinnitus has been a chronic condition since his period of active duty service. Because tinnitus is a condition capable of lay observation, and because the Veteran's statements regarding the in-service onset and continuing nature of tinnitus are credible, the Board finds that such is sufficient to establish that the Veteran's tinnitus started in service and continued thereafter. Accordingly, service connection for tinnitus is warranted. To that extent, this appeal is granted. 2. Entitlement to service connection for a right shoulder disorder. The Veteran contends in his January 2012 claim and in a February 2012 statement that he is entitled to service connection for a right shoulder disorder that he believes is related to an injury incurred during service in 1994 after he struck a tree during a parachute jump with his airborne unit. During a March 2020 examination, the Veteran asserted that he has had chronic right shoulder problems since the in-service injury. Consistent with the Veteran's assertions, service treatment records document that the Veteran was treated in March 1994 for right shoulder pain after he slammed into a tree during airborne operations. A physical examination conducted at that time showed decreased right shoulder motion and tenderness during palpation over the shoulder joint. Notably, no radiological studies of the Veteran's shoulder were conducted, and the Veteran received a diagnosis at that time for a right shoulder contusion. Shoulder examinations conducted in April 2015 and March 2020 revealed current positive objective findings that included decreased and painful right shoulder flexion and abduction. Decreased muscle strength was observed during the April 2015 examination. Still, both examiners provided negative etiology opinions. For rationale, the April 2015 examiner noted that the records since service are silent for further treatment or complaints related to the Veteran's right shoulder. The March 2020 examiner explained that although the Veteran was treated for shoulder problems during service in 1994, he did not report any ongoing shoulder problems during his 2000 separation examination. The Board is not inclined to assign significant weight to the April 2015 and March 2020 opinions. The April 2015 examiner provides no explanation as to why the absence of right shoulder treatment since service necessarily precludes the possibility that the Veteran has had chronic right shoulder problems dating back to his in-service injury. Indeed, the Board notes that the absence of treatment alone cannot serve as basis for a negative etiology opinion. Similarly, the March 2020 examiner does not consider or discuss the Veteran's assertion that he has had chronic right shoulder problems that date back to his in-service injury. For that reason, the March 2020 opinion is also incomplete. The Board finds that the Veteran credibly asserts that he has had chronic and progressive right shoulder problems that date back to his 1994 in-service injury. To that end, he explains plausibly that he would simply "take the pain and drive on" during service. He explains also that treatment for his medical problems is difficult to arrange and obtain because of his incarceration (the record shows that the Veteran has been incarcerated since 2002). Overall, the evidence does not appear to rebut the Veteran's assertions concerning chronicity. In conjunction with the same, the examinations conducted in April 2015 and March 2020 have indicated positive objective findings that are largely consistent with those shown during the in-service treatment in 1994 immediately after the Veteran's in-service injury. The evidence and the medical history appear to be consistent with the conclusion that the Veteran's current right shoulder strain, as diagnosed by the March 2020 examiner, likely resulted from the Veteran's in-service injury. The Veteran has a right shoulder strain that was likely incurred during active duty service. He is therefore entitled to service connection for right shoulder strain. To that extent also, the appeal is granted. REASONS FOR REMAND 1. Bilateral foot examination. As noted, the Veteran is presently incarcerated. In the previous October 2018 Board remand, the Board directed that the Veteran be afforded a new examination of his feet to determine the nature and etiology of any neurological disorders, to include residuals associated with cold injuries. Specifically, the Board directed that the AOJ follow appropriate procedures for scheduling examinations for incarcerated veterans. The duty to assist provisions of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 apply equally to incarcerated veterans and non-incarcerated veterans and VA has special procedures for handling the scheduling of VA examinations for incarcerated veterans. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (providing that the duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement as such individuals are entitled to the same care and consideration given to their fellow non-incarcerated veterans). VA's duty to assist an incarcerated veteran potentially includes: (1) attempting to arrange transportation of the veteran to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination worksheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). Further, the VA M21-1 Adjudication Procedures Manual details specific procedures for scheduling examinations for incarcerated veterans. M21-1, III.iv.3.F.2.d. (2017). Those procedures instruct 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 or examined at the prison by VHA personnel; prison medical providers at VA expense; or, fee-based providers contracted by VHA. All efforts undertaken by the AOJ to schedule the examination, to include communications with prison officials, must be documented. In the event that the examination does not take place, the record must include documentation that VHA compensation clinics and/or VBA contract examination vendors made substantial efforts to schedule and conduct the examination, and, exhausted all possible avenues for obtaining access to the incarcerated veteran for the examination. Here, the record shows only that the AOJ sought to schedule a fee-based bilateral foot examination for the Veteran with Dr. T.L. in February 2020. There is no indication, however, that the foot examination ever occurred although the records do show that a right shoulder examination did take place in March 2020. Indeed, there is no record documenting or explaining the reasons for why a foot examination did not take place. In conjunction with the same, there is no documentation or other indication in the record that any of the scheduling procedures set forth under Bolton or within the VA Adjudication Procedures Manual were followed. To that end, there is no indication that the AOJ made any effort to contact prison authorities to discuss the means and methods by which the Veteran's examination was to be conducted. In sum, the evidence shows only that the AOJ acted unilaterally to schedule a foot examination for the Veteran, and indeed, that no foot examination ever took place without any explanation of the reason therefor. Such efforts are a failure of VA's duty to assist the Veteran and do not comply substantially with the Board's previous remand instructions. Under the circumstances, the Board is compelled again to remand this matter so that the Veteran can be scheduled for an examination to determine the nature and etiology of any disorders in the Veteran's feet, to include any residuals associated with cold injuries incurred during service. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Again, the AOJ should follow appropriate procedures for scheduling examinations for incarcerated veteran, to include the procedures set out in Bolton and/or the VA M21-1 Adjudications Procedures Manual. The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his alleged foot condition. Updated records for any relevant treatment identified by the Veteran and not already of record should be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. After the development described above is complete, schedule the Veteran for a bilateral foot examination to determine the nature and etiology of any neurological disorders and/or cold injury residuals. The evidentiary record, including a copy of this remand, must be made available to the examiner and be reviewed by the examiner. As the Veteran is 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 AOJ should determine the feasibility of having the Veteran 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 determine which option is the most feasible, if any, and document all attempts taken to schedule the Veteran for an examination related to his claim. The examiner should identify all neurological conditions and/or cold injury residuals of the feet and, for each identified condition, provide opinions as to whether it is at least as likely as not that: a) the disorder was incurred during the Veteran's honorable period of service from March 1991 to November 1998; or, b) resulted from an in-service injury, illness, or event during the Veteran's honorable period of service from March 1991 to November 1998, to include but, not limited to, the complaints and injuries treated during service from October through November of 1995 (NOTE: even if the examiner concludes that the Veteran did not incur a cold injury during service or that he does not have any current residuals associated with a cold injury, the examiner should still give an opinion as to whether the Veteran's current disorder(s) are related etiologically to the complaints and injuries treated during service from October through November of 1995.) The examiner should provide a complete rationale, to include a discussion of relevant facts and medical principles, for all stated conclusions and opinions. All findings, opinions, and supporting rationale should be expressed in a written report. 3. After completion of the above development, the issue on appeal should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Lee 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.