Citation Nr: 1305646 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 05-20 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for vision problems, claimed as secondary to treatment for service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had a period of full-time service from August 1985 to February 1986 after enlistment in the US Army Reserves which has been variously characterized as active duty or as active duty for training. The Veteran continued to be enlisted in that Reserve component when he was called to active duty training in June 2002. Based on injury in that period of service, he has been granted service connection for several disabilities, so that service, from June 1, 2002 through June 16, 2002, is considered active service. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the Veteran's claim of entitlement to service connection for vision loss, claimed as secondary to cortisone shots for treatment of service-connected plantar fasciitis. The Board remanded the claim in February 2008, September 2010, and February 2012. The Veteran had requested a hearing before the Board. The RO sent written notification of the hearing in July 2007. In August 2007, the Veteran did not appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. In an administrative decision in June 2012, the RO denied the claim for VA non-service-connected pension. As the Veteran has not initiated an appeal of the claim, the claim has not been developed for appellate review by the Board. The Veteran does have the remainder of the one-year period from June 21, 2012, to file a notice of disagreement to initiate an appeal of the claim. In June 2012, the Veteran filed claims of service connection for a low back disability and for an increased rating for his plantar fasciitis disability. To date, it does not appear the RO has adjudicated these claims. The issues of service connection for a low back disability and for an increased rating for the plantar fasciitis disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In its February 2012 Remand, the Board noted that further development of the medical evidence was required to determine whether the medications used to treat the Veteran's service-connected disabilities aggravated the claimed loss of vision. The February 2012 Board remand directed that the Veteran be requested to provide additional information to facilitate development of the claim. In the Remand text prior to the numbered directed actions, it was outlined that the request for additional information should include whether additional records may be available from an identified private medical provider, the John H. Stroger, Jr. Hospital, or any other medical provider of treatment for his vision problems, and clarification from the Veteran as to whether he underwent an ophthalmology procedure from any private provider prior to his August 2004 VA treatment. In addition, it was directed that all missing VAMC records, such as complete clinical notes for VA ophthalmology procedures, be obtained. The Board acknowledges that VA issued a letter to the Veteran in February 2012 requesting, in general, the names, addresses, and approximate dates of all private medical treatment, including for vision problems. However, the letter did not contain the specificity as to the relevant potentially outstanding evidence as outlined in the Remand text noted above. The Veteran returned the provided VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), but did not specify the name of any medical treatment provider. The Board finds that the Veteran should be afforded another opportunity to provide the requested information by issuing a second request containing greater specificity as to the information needed. Further, as to VAMC records, the virtual file indicates they cover September 1998 to February 2012, but actually cover January 2011 through February 2012 and portions of records from other periods. It does appear that the RO has obtained a list of all medications dispensed by VA between 2004 and 2012. The Board notes that the record for treatment appears complete from 2004 to July 2005, and then from March 2009 to February 2012. Thus, except for a few records such as the medications list or an April 2008 VAMC neurology consult regarding facial numbness and its relationship to the Veteran's 2004 eye surgery, there is a gap in documentation for treatment provided to the Veteran from July 2005 to March 2009. Further, there is no documentation determining whether VA treated the Veteran prior to July 2004. In addition, the Board had directed in a September 2010 Remand that the examiner from the June 2010 VA medical opinion address the issue of service connection based on aggravation and clarify that portion of the June 2010 medical opinion addressing secondary service connection, including as proximate to medications used for treatment of the service-connected disability. An addendum was obtained in October 2010 but it did not clarify the original medical opinion as to secondary service connection. The statement in the addendum, that the original etiology of the Veteran's retinal detachment and loss of vision "cannot be stated with any certainty" suggests a degree of speculation that required further development and explanation. As to aggravation, the examiner stated that the Veteran's history "would indicate" that his visual disorder was not likely aggravated by the treatment for service-connected disabilities. Again, the Board concluded that this opinion regarding aggravation required further explanation. Thus, the Board in February 2012 directed that after the records development was completed, that is, available VA treatment records are associated with the claims files, and non-VA treatment records identified by the Veteran have been obtained, to ask the VA examiner from the June 2010 VA examination to provide additional opinions and clarifications. Even with the foregoing information from the NPRC, the RO did not request further explanations and clarifications from the June 2010 VA examiner, but instead readjudicated the claim based upon the original June 2010 report and October 2010 addendum in a supplemental statement of the case dated in October 2012. The Board has therefore concluded that a remand is necessary to ensure compliance with the directives of the February 2012 Remand. First, the RO must send the Veteran a letter requesting the information set forth above and based on the information and authorizations or records submitted by the Veteran, obtain the additional private records. In addition, the RO must obtain the missing portion of the VAMC records. Finally, after the requested development is completed, the RO must arrange for the June 2010 VA examiner, or suitable substitute, to review the entire file and provide the additional opinions and clarifications. The Board notes that based upon the development that has occurred to date, VAMC notes in November 2011 indicate the Veteran has also sought treatment from Sherman Hospital, and St. Joseph's Hospital, both located in Elgin, Illinois. As the notes do not indicate the nature of the treatment, the Veteran should be asked whether additional records may be available from Sherman Hospital, and St. Joseph's Hospital, that reflect treatment for his vision problems. Accordingly, the case is REMANDED for the following action: 1. By letter, ask the Veteran to identify, and to provide signed authorization for the release of medical records, for each non-VA provider, including, but not limited to the John H. Stroger, Jr. Hospital of Cook County, Chicago, and Sherman Hospital and St. Joseph's Hospital, both located in Elgin, Illinois, at which he obtained medical treatment for his vision, feet (i.e. plantar fasciitis, bilateral tinea unguium and tinea pedis), and/or for headaches, after he sustained initial injury and onset of those disabilities during a June 2002 period of service. The Veteran should also be asked to identify each provider or facility rendering treatment of the Veteran for diabetes mellitus from June 2002, if those records have not already been obtained. In addition, the Veteran should be asked to identify any records which might show what medications were prescribed for the Veteran beginning in June 2002, especially during the period from September 2002 through August 2004. The Veteran should be advised, for example, to identify pharmacies that might have records of medications filled for the Veteran during that time. Afford the Veteran an opportunity to identify any evidence of any type that might assist him to substantiate his claim. The RO should also advise the Veteran that the failure to provide the information may result in a subsequent decision based upon the evidence of record. Identified records should be obtained, with appropriate consent, and associated with the Veteran's claims files or his virtual file. All efforts must be documented and associated with the file. Any negative replies must be in writing and the Veteran notified in accordance with 38 C.F.R. § 3.159. 2. Obtain VAMC records from June 2002 to July 2004, from July 2005 to March 2009, and from February 2012 to the present from Hines VAMC, Elgin CBOC, and any other associated outpatient clinics. All efforts to obtain these records must be documented in the file. As applicable for any period specified above, there must be written documentation if no such records exist or are available. 3. Contact the Social Security Administration (SSA) and request all records pertaining to any claim by the Veteran for SSA disability benefits. If no such records exist, or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 4. After the development requested above is completed, arrange for the examiner who performed the July 2010 examination, or any other available ophthalmology specialist reviewer, to review the complete file and provide the opinions and answer the questions requested below. The claims folder must be made available to the examiner for review. A complete rationale for all opinions must be provided. The reviewer should review relevant service treatment records, a February 2003 Medical Examination Report for Commercial Driver Fitness Evaluation, a May 2004 Emergency Department record of evaluation of the Veteran's vision at John H. Stroger, Jr., Hospital of Cook County, records of podiatric treatment provided by Franklin Foot Institute in 2005 and prior, VA ophthalmology treatment records, and any other relevant records. After reviewing all relevant records, including records of all medications used to treat the service-connected disabilities before the Veteran lost his sight in the right eye, the reviewer should address the questions below: a). Is it at least as likely as not (50 percent or greater probability) that the Veteran has a current vision disorder, to include loss of right eye vision, which results from treatment of a service-connected disability, to include treatment with medications including steroids? If the answer to this question is unfavorable to the Veteran's claim, then the reviewer should address the following question. b). Is it at least as likely as not (50 percent or greater probability) that the Veteran has a current vision disorder, to include loss of right eye vision, which was permanently worsened beyond normal progression (aggravated) by treatment of a service-connected disability, to include treatment with medications including steroids? c). Apart from the opinions expressed as to the relationship between a current vision disorder and a service connected disability, the examiner is asked to determine whether it is at least as likely as not (probability of 50 percent or more), that any current vision disorder had its onset during service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is advised that lay evidence of the onset and continuity of symptoms after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that the symptom, for example pain, is derived from an injury, disease, or event in service. The examiner is asked to express any opinions regarding a relationship to service or to a service-connected disability in terms of more likely than not (greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not less than 50 percent). The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. If the examiner cannot provide an opinion without resort to mere speculation, the examiner should explain if the reason that the opinion cannot be provided is because the limits of medical knowledge has been exhausted or, instead, because further information to assist in making this determination (e.g., additional records and/or diagnostic studies) is needed, or other procurable and assembled data is required. If additional evidence is identified by the examiner, attempt to obtain that evidence and readjudicate the claim, including obtaining another medical opinion if necessary. 5. After the development requested above is completed to the extent possible, adjudicate the claim of service connection for vision loss. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford the appropriate period to respond before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).