Citation Nr: 21027172 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-50 613 DATE: May 4, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. 2. The preponderance of the evidence of record is against finding that the Veteran has had a hearing loss disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1982 to March 1985. This matter comes to the Board of Veterans' Appeals (Board) from an October 2012 Department of Veterans Affairs (VA) rating decision from the Regional Office (RO). This case has been remanded several times by the Board, most recently in December 2020. The directives of the Board's prior remands having been substantially complied with the case is now returned for appellate review. Duty to Assist Incarcerated Veterans Prior to addressing the merits of the claim, the Board will address whether the duty to assist incarcerated veterans has been met, as this has been the subject of multiple Board remands and in large part, determines the outcome of the case. Ultimately, VA was unable to provide an audio examination for the Veteran during his incarceration. Nonetheless, based on the efforts documented in the February 2021 memorandum, discussed in more detail below, VA has met its duty to assist the Veteran including the additional procedures for assisting incarcerated veterans. Prior to his incarceration, the Veteran underwent a VA audiological examination in March 2012. However, the VA examiner indicated that the Veteran's puretone test thresholds were not valid for rating purposes because of inconsistent responses and the Veteran's overall behavior during the test, which suggested exaggerated responses. The Board remanded the case in January 2019 so that another audiological evaluation could be provided with an etiology opinion considering that the Veteran had been diagnosed with left ear hearing loss on his separation examination. However, during the remand, the Veteran became incarcerated, and no VA examination was scheduled. In June 2020, the Board remanded the case so that the procedures for providing examinations for incarcerated Veterans could be followed. The duty to assist incarcerated Veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, because Veterans in these circumstances are entitled to the same care and consideration given to non-incarcerated Veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995). 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 id. Nevertheless, 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 requesting that their medical personnel conduct an examination according to VA examination work sheets (disability benefits questionnaires); or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. The record reflects on a September 2020 Report of General Information that the Veterans Service Representative at the RO spoke with the Orlando VAMC C&P administrator regarding scheduling an audio and tinnitus examination for the Veteran. He was told that they had lost a qualified C&P audio physician and could not assist with the examination. A September 2020 email to the RO from Veterans Evaluations Services (VES) notes that it was unable to perform audio evaluations on incarcerated veterans due to equipment requirements for audiograms; and that they were contractually unable to transport veterans offsite for the evaluation. The case was returned to the Board. In September 2020, the Board remanded the claim again noting that the RO still had not met the duty to assist incarcerated veterans by following the step-by-step procedures, as noted above. An October 2020 C&P note signed by a VA nurse practitioner notes that the Veteran was in prison and that the particular institution where he was incarcerated did not allow inmates to leave without physical restraints. It was noted that mechanical restraints (handcuffs, waist-chains, and/ or leg shackles, etc.) must be removed from the incarcerated veteran upon entry into a VA facility per policy. It was further noted that currently there was not a C&P examiner available to go to the prison where the Veteran is incarcerated. Due to these conflicting policies, it was determined that the Veteran could not be examined in person. For audiology examinations, specific equipment is required that is too large to be transported. Finally, it was noted that per Memorandum No. 136-20 paragraph 3.e., dated June 22, 2016: Mechanical restraints (handcuffs, waist-chains, and/ or leg shackles, etc.) must be removed from the incarcerated veteran upon entry into the facility to avoid interference with medical treatment. If the level of required security is such that mechanical restraints must remain in place, the law enforcement agency must make arrangements for treatment at a non-VA facility. The case was again returned to the Board. In December 2020, the Board remanded the claim again. It was noted that the Veteran and his representative had argued that VA had not yet demonstrated that transportation to a VA facility for examination was not feasible other than the one location at the Orlando VAMC that could not perform the evaluation. The Board noted that while the claims file indicated that attempts had been made to provide an examination for the Veteran, it was unclear if all appropriate efforts had been taken and that a memorandum was not associated with the file showing that all procedures were followed. In February 2021, the RO issued a memorandum regarding its efforts to schedule the Veteran for a VA audio examination as an incarcerated veteran. On February 12, 2021, per the point of contact for the Florida Department of Corrections, the prison did not have a sound-proof audio booth for VA to conduct an audio examination. Per VA's contract with QTC, they were unable to transport or have an incarcerated veteran transported outside their facility. The memorandum also indicated that on February 17, 2021, a phone call was made to the Lake Baldwin Community Based Outpatient Clinic, in reference to administering an audio examination to an incarcerated inmate located at Tomoka Correctional Institution in Dayton Beach. The response was that VA was not performing face-to-face examinations for audio. The memorandum noted that in September 2020, VES emailed the response that it was contractually unable to perform audio evaluations on incarcerated veterans due to equipment requirements for audiograms. It was further noted that VES is contractually unable to transport veterans offsite for evaluations. The RO noted that based on the response from the point of contact at the Florida Department of Corrections, they did not have sound-proof audio booths to conduct audio examinations. Per VA's contract with QTC, they were unable to transport or have an incarcerated veteran transported outside the facility. The medical professionals employed at the prison are unable to examine the Veteran, and complete the appropriate Disability Benefits Questionnaire, and provide the relevant medical opinions. Also, clinicians from VA are not allowed to perform examinations or treatment during the visit, which then became a credentialing issue of practicing in VA's facility. It was noted that VA had exhausted all possible avenues for providing examinations for the Veteran. An April 2021 written brief presentation from the Veteran's representative argued that VA still had not followed the appropriate VA procedures for arranging an examination of incarcerated veterans and had failed to comply with the Board's prior remands. It was argued that although VA had contacted a single VA Community Based Outpatient Clinic in Lake Baldwin, who noted that they were unable to transport due to their contract, this did not constitute reasonable efforts to assist the Veteran in obtaining a VA examination. It was noted that there are other VA healthcare facilities in Florida that had audiologists and the Veteran could be transported to one of those facilities. The Veteran's representative cited to a VA Exam Worksheet in the claims folder, added to the file on December 26, 2020, which noted that even despite COVID-19 restrictions, the VA clinic in Gainesville, Florida, less than a two-hour drive from Daytona Beach correctional facility, provided face-to-face audiology exams. The Veteran's representative further argued that even if the existing contracts with QTC and VES did not allow for them to perform examinations in correctional institutions or transport Veterans offsite for evaluations, VA had not shown that it had attempted to amend those contracts or contract with another audiologist (e.g., one contracted under the Community Care Network program) who would be willing to provide an examination. A search of the VA site (https://www.va.gov/find-locations) for in-network community providers (Audiology) near Daytona Beach, Florida listed no fewer than three providers within 10 miles of Daytona Beach. In reviewing the record, the Board finds that VA has met its duty to assist the Veteran. VA attempted to arrange transportation of the Veteran to a VA facility for examination. In September 2020, the RO attempted to arrange for the Veteran to be transported to the Orlando VAMC but was told that they did not have a qualified C&P audio physician and could not assist with the examination. The VES also noted that it was unable to perform audio evaluations on incarcerated veterans due to equipment requirements for audiograms; and that they were contractually unable to transport veterans offsite for the evaluation. An October 2020 C&P note signed by a VA nurse practitioner further notes that the prison where the Veteran was incarcerated required that his restraints remain on him during the examination but that per VHA policy, mechanical restraints must be removed during treatment in a VA facility. It was further noted that currently there was not a C&P examiner available to go to the prison where the Veteran is incarcerated. Due to these conflicting policies, it was determined that the Veteran could not be examined in person. If the level of required security is such that mechanical restraints must remain in place, the law enforcement agency must make arrangements for treatment at a non-VA facility. Finally, as noted, on February 17, 2021, a phone call was made to the Lake Baldwin Community Based Outpatient Clinic, in reference to administering an audio examination to an incarcerated inmate located at Tomoka Correctional Institution in Dayton Beach. The response was that VA was not performing face-to-face examinations for audio. VA also contacted the prison and requested that their medical personnel conduct an examination according to VA examination worksheets. The RO noted that based on the response from the point of contact at the Florida Department of Corrections, they did not have sound-proof audio booths to conduct audio examinations. The medical professionals employed at the prison also were unable to examine the Veteran, and complete the appropriate Disability Benefits Questionnaire, and provide the relevant medical opinions. Finally, VA attempted to send a VA or fee-basis examiner to the prison to conduct the examination. However, a September 2020 email to the RO from Veterans Evaluations Services notes that it was unable to perform audio evaluations on incarcerated veterans due to equipment requirements for audiograms; and that they were contractually unable to transport veterans offsite for the evaluation. The October 2020 C&P note signed by a VA nurse practitioner also notes that for audiology examinations, specific equipment is required that is too large to be transported. Based on the RO's efforts, VA has met the duty to assist the incarcerated Veteran in this case. The Veteran's representative argues that VA has not met its duty to assist the Veteran because there are other VA healthcare facilities in Florida other than the ones contacted by the RO that had audiologists and the Veteran could be transported to one of those facilities. See April 2021 written brief presentation. The Veteran's representative specifically cited to a VA Exam Worksheet in the claims folder, added to the file on December 26, 2020, which noted that even despite COVID-19 restrictions, the VA clinic in Gainesville, Florida, less than a two-hour drive from Daytona Beach correctional facility, provided face-to-face audiology exams. However, VA would still be restricted in providing an audiology examination at the Gainesville Florida VA clinic, because VHA policy requires that physical restraints be removed from patients entering the facility and the Daytona Beach prison where the Veteran is incarcerated requires that the Veteran's restraints remain on when he has left the prison. Thus, the Veteran still would not be able to by physically examination by the audiologist at the Gainesville VA clinic and any further attempts to schedule him would be fruitless. The Veteran's representative further argued that even if the existing contracts with QTC and VES did not allow for them to perform examinations in correctional institutions or transport Veterans offsite for evaluations, VA had not shown that it had attempted to amend those contracts or contract with another audiologist (e.g., one contracted under the Community Care Network program) who would be willing to provide an examination. This argument from the Veteran's representative goes beyond the scope of VA's duty to assist incarcerated veterans for scheduling VA examinations. VA's duty to assist does not include amending contracts in place for providing examinations for veterans; nor does it require VA to create new contracts with other facilities in the community. Based on the above efforts documented in the February 2021 memorandum, VA has met its duty to assist the Veteran including the additional procedures for assisting incarcerated veterans. Service Connection 1. Entitlement to service connection for tinnitus. The Veteran asserts that he has tinnitus as a result of exposure to acoustic trauma in service. On his March 2011 claim, he noted that while on a training a round misfired and blew off his helmet, hitting the left side of his head. The Veteran's DD-Form 214 shows that his military occupational specialty (MOS) in the U.S. Army was Infantryman. He also earned, in pertinent part, the sharpshooter badge, the M-16 rifle badge, and the hand grenade badge. It is consistent with the circumstances of his service that a training round ricocheted close to him causing his helmet to blow off. Thus, exposure to in-service acoustic trauma in conceded. Tinnitus is found to be capable of lay observation, and thus his statements constitute competent evidence. The United States Court of Appeals for Veterans Claims (Court) has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board concludes that while the Veteran's tinnitus was not diagnosed during service, the Veteran has reported the onset in service, and there has been continuity of the same symptomatology since his separation from service in March 1985. The Veteran has a current diagnosis of tinnitus. A March 2012 VA examination report shows the Veteran reported recurrent tinnitus with an onset in service from a low rocket launch and there was a ricochet close to his him. Although the VA examiner in March 2012 found that the tinnitus was a symptom associated with hearing loss, the Veteran also has stated that he has continued to experience symptoms of tinnitus since his exposure to acoustic trauma in service. The Veteran is competent to state that he has experienced tinnitus since service. Also, as noted, it is consistent with the circumstances of his service in the U.S. Army as an infantryman that he would be exposed to acoustic trauma from training rounds, especially since he earned the sharpshooter badge, the M-16 rifle badge, and the hand grenade badge. Thus, resolving all reasonable doubt in the Veteran's favor, tinnitus has been present since service. As such, service connection for tinnitus is granted. 2. Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for hearing loss related to exposure to acoustic trauma in service. As noted above in the section addressing tinnitus, exposure to acoustic trauma in service has been conceded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Impaired hearing is considered a disability for VA purposes when: (a) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; or (b) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or (c) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The service treatment records show that on a pre-enlistment examination report in February 1982, the Veteran did not have a hearing loss disability for VA purposes. However, in the left ear, he had a finding of 30 decibels at 6,000 Hz. At his separation examination in March 1985, the service treatment records show that the Veteran had left hearing loss for VA purposes. Specifically, the Veteran's left ear showed 40 decibels at 4,000 Hz. See id. Given that hearing loss in the left ear was shown at separation from service and exposure to acoustic trauma in service is conceded, the determinative issue is whether the Veteran has a present left ear hearing loss disability, and whether any current right hearing loss is related to exposure to acoustic trauma in service. The Veteran underwent a March 2012 VA audiological examination, which showed that pure tone thresholds reflected that he had bilateral hearing loss for VA purposes. However, the VA examiner indicated that the Veteran's puretone test thresholds were not valid for rating purposes. The VA examiner reasoned that inconsistent responses and the Veteran's overall behavior during the test suggested exaggerated responses, and that positive Stenger/contralateral interference was used to obtain better left ear responses than voluntarily offered. As to the etiology of the Veteran's left ear hearing loss, the March 2012 VA examiner found that the Veteran's left ear hearing loss existed prior to service and was aggravated beyond the normal progression during military service. However, in a separate part of the opinion, the March 2012 VA examiner found that left ear hearing loss was less likely than not caused by or a result of an event in military service. The examiner reasoned that while the Veteran had evidenced increased hearing loss while in service, and that exposure to high levels of noise causes either immediate hearing loss, or progressive hearing deficits during prolonged periods of exposure, no retroactive hearing effect is expected after years of being exposed to noise. Although the VA examiner discussed the Veteran's increased hearing loss in service, the VA examiner failed to discuss that the March 1985 audiological evaluation which shows that puretone thresholds were recorded at 40 decibels at the 4,000 Hz frequency, thus, evidencing that the Veteran had a left ear hearing disability on separation for VA purposes. Id. The examiner also offered conflicting medical opinions by stating that the left ear hearing loss was aggravated during service; but also that it was not caused by or a result of an event in military service because even though his hearing loss increased in service no retroactive hearing effect is expected years after noise exposure. As noted in the duty to assist section above, the Board subsequently remanded the case several times to get an adequate VA examination to determine whether the Veteran had a present hearing loss disability related to his conceded exposure to acoustic trauma in service. However, VA was unable to schedule an examination due to conflicting policies from the prison where the Veteran is incarcerated and the policies of the VA healthcare facilities for audio examinations. The Board cannot rely on the findings on the March 2012 VA examination report because they were found to be unreliable for rating purposes due to inconsistent responses and the Veteran's overall behavior during the test, which suggested exaggerated responses. VA treatment records show that sensorineural hearing loss was noted on his problem list after the examination. See, e.g., April 4, 2012 psychiatric progress note. However, this appears to be based on the March 2012 VA examination report, as there are no other audiological examinations of record in the post-service VA treatment records. Because a subsequent VA examination could not be provided in spite of the RO's efforts, VA is unable to corroborate that the Veteran has a current hearing loss disability for VA purposes. Although the Veteran is competent to state that he suffers from hearing loss, he is not competent to state that he has a hearing loss disability for VA purposes, which has specific requirements that can only be determined by an audiological examination. See 38 C.F.R. § 3.385. Even though a hearing loss disability in the left ear was shown at separation from service, and noise exposure in service has been conceded, without a current hearing loss disability for VA purposes, the criteria for service connection for hearing loss are not met. See 38 C.F.R. § 3.303. Thus, the claim for service connection for bilateral hearing loss must be denied. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.