Citation Nr: 21014513 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-24 966A DATE: March 12, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected irritable bowel syndrome (IBS) is remanded. REASONS FOR REMAND For VA purposes, the Veteran had active service from March 25, 1982 to December 12, 1989. Service from December 1989 until November 1993 has been determined to be dishonorable for VA purposes. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2013 (IBS) and March 2015 (bilateral hearing loss) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In a November 2018 decision, the Board, in pertinent part, denied an increased evaluation for IBS and service connection for bilateral hearing loss. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In a May 2020 memorandum decision, the Court vacated and remanded the increased evaluation for irritable bowel syndrome and service connection for bilateral hearing loss claims to the Board for additional development and readjudication. 1. The Claims on Appeal are Remanded. The Veteran contends that service connection for bilateral hearing loss is warranted due to noise exposure during service and that an increased evaluation for service-connected IBS is warranted. By history, the May 2020 memorandum decision found the parties agreed that the VA failed to satisfy the duty to assist regarding the claims for service connection for hearing loss and an increased evaluation for IBS. After review of the evidence, both lay and medical, the Board finds that a remand is necessary. During the course of the appeal VA attempted to obtain examinations for both conditions. However, a February 2018 memorandum indicated examinations could not be conducted for multiple reasons, including that Virginia State Correctional Centers do not transport Veteran’s for non-emergent/urgent care. The United States Court of Appeals for Veterans Claims has held that VA must tailor its assistance to the peculiar circumstances of obtaining examination of an incarcerated claimant. Bolton v. Brown, 8 Vet. App. 185 (1995). The Court indicated that alternative means to obtain examination of an incarcerated claimant include: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their personnel conduct an examination according to VA examination worksheets; or (3) sending a VA examiner to the correctional facility to conduct the examination. There is no indication from review of the claims folder that the RO took any action to schedule a VA examination pursuant to the alternate means outlined in Bolton. Regarding the claim for bilateral hearing loss, the Veteran submitted a May 2018 audiological evaluation. Although the report provides an audiometric graph without written numerical values of pure tone thresholds, the United States Court of Appeals for Veterans Claim (Court) has found that the Board can interpret audiometric graphs. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise). A review of the May 2018 private examination appears to indicate the Veteran has hearing loss for VA purposes. However, even were the Board to find the Veteran had a current hearing loss disability, the Board cannot opine on the etiology of such a disability, or any links to noise exposure during service. While the treatment records indicate the physician indicated “suspect related to age and noise related” this opinion is equivocal and does not include a rationale. As such, a remand for an opinion is necessary. Regarding the claim for IBS, in April 2018, the RO obtained a records review by a VA physician. The Veteran, through his representative, has argued that this records review was inadequate and that alternative means of examination, such as a phone interview, should have been conducted. The Veteran has submitted multiple lay statements in support of the claim. Additionally, a single treatment record from October 2020 was submitted. However, it appears that it has been many years since any attempt to obtain the Veteran’s treatment records have been made. As such, given that it appears the criteria for Bolton were not met and that there are outstanding treatment records, a remand is necessary. On remand the Board will order the RO to attempt alternative methods to obtain the requested examinations. However, the claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The matters are REMANDED for the following action: 1. Contact the facility where the Veteran is incarcerated and the Veteran’s representative and request that arrangements be made for the Veteran to undergo VA examinations to assess the current severity of his IBS, to include having the correctional facility personnel conduct an examination according to VA examination worksheets, or if feasible, through telemedicine or other remote forms of evaluation. All efforts to afford such examinations should be documented in the claims file. 2. Ask a VA audiologist to attempt to interpret the May 2018 private audiogram. The examiner should note the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz and provide the pure tone threshold averages, if feasible. If the examiner is unable to interpret the graphs and/or determine whether the Maryland CNC test was used, he or she should explain why the determinations cannot be made. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. After review of the claims file. The examiner is asked to provide the following opinions: Is it at least as likely as not (50 percent probability or greater) that any current bilateral hearing loss is etiologically related to the Veteran’s active service prior to December 12, 1989? The examiner must comment on the Veteran's reports of in-service noise exposure and continuous symptoms since his period of active duty military service. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.