Citation Nr: 18131303
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-42 806A
DATE:	August 31, 2018
Entitlement to service connection for bilateral hearing loss is remanded.
The Veteran had active duty from September 1968 to April 1971.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
Entitlement to service connection for bilateral hearing loss is remanded.
Unfortunately, the Veteran’s claim for service connection for bilateral hearing loss must be remanded for further development rather than decided immediately. See Shoffner v. Principi, 16 Vet. App. 208, 213 (2002).
After unsuccessful attempts to obtain a VA examination to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss, the RO denied the claim. Although VA’s ability to provide examinations to incarcerated veterans may be limited by the circumstances of the incarceration, VA must “tailor [its] assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans.” Bolton v. Brown, 8 Vet. App. 185, 191 (1995), citing Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). 
While VA does not have authority under 38 U.S.C. § 5711 (West 2014) to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility, VA’s duty to assist an incarcerated veteran extends, if necessary, to either having him examined by a fee-basis physician, VA personnel, or a prison medical provider at VA expense. See Bolton, 8 Vet. App. 191; see also VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 3, Section A, Topic 11.
Since the Veteran remains incarcerated, the RO must make reasonable efforts to accommodate the Veteran at prison with respect to his current incarceration when scheduling the VA examination.
Additionally, the Board observes that there are February 2011 and November 2015 audiological examination of record conducted by the Federal Bureau of Prisons. However, the examinations are inadequate because there is no indication that speech recognition scores were recorded, much less that they were conducted using the Maryland CNC Speech test. 38 C.F.R. § 3.385.  
As there are additional treatment records directly pertinent to the current issue, all outstanding records from the Federal Bureau of Prisons should be obtained, to the extent available, and associated with the claims file. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
The matter is REMANDED for the following action:
1. Make arrangement to obtain the Veteran’s complete medical treatment records, including all audiograms, from the Federal Bureau of Prisons in Washington, D.C.  See Letter from Federal Correctional Institute to the RO, dated December 27, 2013, for additional details.  
2. Upon receipt of all additional records, schedule the Veteran for a VA audiological examination. The claims file and a complete copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. 
Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current hearing loss had its clinical onset during active service or is related to the Veteran’s in-service noise exposure from working on aircraft.  
When providing this opinion, the examining audiologist must consider the in-service audiograms (including any evidence of threshold shifts), dated August 1968, November 1968, June 1969, October 1969, and March 1971.
It is essential the examiner discuss the underlying reasoning supporting his or her opinion, whether favorable or unfavorable to the claim, if necessary citing to specific findings in the file substantiating conclusion(s).
The RO must make reasonable efforts to accommodate the Veteran with respect to his current incarceration when scheduling the VA examination. Specifically, the examination must be tailored in such a manner to arrange for his examination in prison by VA personnel, a fee-based provider contracted by VA, or a prison physician at VA expense. If the VA examination simply cannot be conducted due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the medical examination, including any coordinating efforts with prison medical staff. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 3, Section A, Topic 11.
4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case and afford them the appropriate time period for a response before the claims file is returned to the Board for further appellate consideration
Veterans Law Judge
Board of Veterans’ Appeals

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