Citation Nr: 21022640 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 20-18 991 DATE: April 16, 2021 REMANDED Entitlement to service connection for a bilateral eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1951 to May 1955. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2020 and October 2020, at which times the appeal was remanded for further development. In November 2020 correspondence, the Veteran indicated that VA could withdraw or reject his claim and he would not appeal. In that statement, he expressed some frustration about being unable to obtain records from his prior treatment providers but indicated that VA had his permission to check with his doctors about his claim. The Veteran’s representative then submitted an informal hearing presentation in which he contended that service connection is warranted. As it is not clear whether the Veteran wishes to withdraw his pending appeal, the Board will proceed to the merits of the case. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”). The Veteran’s service treatment records (STRs) and service personnel records are fire-related and presumed to have been destroyed by a fire at the National Personnel Records Center facility in 1973. See October 2017 Final Attempt Letter. In situations where STRs are completely or partially unavailable, the Board has a heighted obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a claim for service connection, but rather the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicolson, 19 Vet. App. 215 (2005). Service connection for a bilateral eye disability The Veteran contends that his visual impairment was caused by an exposure to some sort of chemical or gas leak from fallen containers during his service in 1952 and that his vision decreased quite a bit from the time of his entrance to his separation. See April 2018 Statement in Support of Claim. He reports that, after this event, his eyes continued to burn and to bother him and that he was given eye drops without relief. See January 2019 Notice of Disagreement (NOD). The Veteran reports that after service he had difficulties obtaining or renewing his driver’s license and needed to obtain a doctor’s statement to get his license. See April 2020 VA Form 9. Although the oldest records in the claims file are from 2016, these records do indicate that the Veteran is no longer driving due to his visual impairments and requires assistance from his wife. In the October 2020 remand, the Board found that, given the lack of records in this case, the RO should make an additional attempt to obtain authorization from the Veteran to obtain his outstanding medical records. The Board noted that, in the July 2020 remand, the Board directed the RO to obtain an authorization and release for information (VA Form 21-4142) for the Veteran’s outstanding private treatment records but that the Veteran did not respond. As such, the Board found that the Veteran should be given another opportunity to provide an authorization to allow VA to obtain these records. The Veteran submitted an incomplete authorization form in November 2020. Along with that release, he submitted the statement discussed above, wherein he stated that his earlier medical records were not available due to the passing of his prior providers but stated that VA had his permission to check with his doctors. See November 2020 Correspondence. It is not clear, based on the Veteran’s statement, whether he understood that VA was seeking his authorization to obtain more recent private treatment records as well as any other, older outstanding records he identified. The RO did not notify the Veteran that his authorization and release were incomplete or request that he resubmit the forms with the appropriate information included. The Board advises the Veteran that he has a duty to assist in the development of his claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board is sympathetic to the Veteran’s confusion and frustration in this case and understands that it is not likely that his older private treatment records are available given his advanced age and the time that has passed since he reports first being seen for vision problems after service. However, the Board wishes to clarify to the Veteran that his more recent private treatment records—such as those from Dr. E.S., Dr. J.F., and Dr. C.G. who provided statements in 2016 and from Dr. R.B. and Dr. A. referenced in his VA treatment records—for his vision problems could be essential to his claim, as they may contain information regarding the history and development of his vision problems and additional information regarding his diagnoses. As such, the Veteran should be afforded one final opportunity to provide the necessary release to allow VA to obtain these records and is advised that these records are important because the records may contain information relevant to his claim for service connection. The Board notes that the Veteran has submitted two pages of his STRs that include his May 1955 separation examination. The copies in the claims file are quite blurry and difficult to decipher but do seem to indicate some decreased or impaired vision as a defect at separation. If the Veteran still has a copy of this examination in his possession, he is asked to resubmit a copy if he has a legible copy. Furthermore, given the multiple vision disabilities noted in the claims file, the RO is directed to obtain a VA examination to assess the nature and etiology of the Veteran’s bilateral eye disability. Of note, visual impairment of 20/200 was indicated in April 2016, and the Veteran has been found to be legally blind. Additional reports of macular degeneration, dry eyes, unspecified disorder of binocular vision, and irritation and burning of the eyes have been noted in the Veteran’s VA treatment records. See April 2016, March 2017, and July 2019 VA Treatment Records. There is also an indication in the Veteran’s VA treatment records that his visual impairment may be related to multiple periocular (the area around the eyeball) carcinomas and treatment for such. The Veteran has not been afforded a VA examination for his bilateral eye disability claim, even though the evidence of record indicates a current diagnosis and a suggestion that his visual impairment may be related to his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the Veteran should be accorded a VA examination to ascertain the nature, extent, and etiology of his bilateral eye disability. Accordingly, this matter is REMANDED for the following: 1. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider—including Dr. E.S., Dr. J.F., Dr. C.G., Dr. R.B., and Dr. A—obtain all records of the Veteran’s treatment for vision problems. All requests and responses for these records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide any missing records. 2. Ask the Veteran to resubmit a legible copy of his May 1955 separation examination that he submitted with his NOD in January 2019 and in April 2018. 3. Then, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any bilateral eye disability he may have. The examiner should have access to, and an opportunity to review, the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. Following review of the claims folder and an interview with and examination of the Veteran, the examiner should: a. Identify/diagnose any bilateral eye disability(ies) that presently exist or that has existed during the appeal period. b. Opine whether it is as likely as not (a 50 percent probability or greater) that any such bilateral eye disability onset in the Veteran’s service or is otherwise etiologically related to such service or consistent with the Veteran’s contentions regarding his service. In expressing this opinion, the examiner should address the Veteran’s contention that his bilateral eye disability began in service when he believes he was exposed to chemicals or gas when storage containers fell in 1952 as well as the Veteran’s contentions that he has had a visual impairment since his military service that has worsened over time. The examiner is also asked to review the Veteran’s May 1955 separation examination and the indication of some level of visual impairment noted on that examination. The Board notes that the copies currently available in the claims file are poor copies, but the examiner is asked to review this evidence in providing an opinion. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination or respond to VA’s request for release of information may impact the determination made. 38 C.F.R. § 3.655. He is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.