Citation Nr: 21040955 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-07 467 DATE: July 7, 2021 ISSUES 1. Entitlement to service connection for a bilateral eye disability. 2. Entitlement to service connection for traumatic brain injury (TBI). 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 4. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 5. Entitlement to service connection for a heart disability. 6. Entitlement to service connection for depression, to include as due to medication taken for a heart disability. 7. Entitlement to service connection for residuals of a stroke, to include as due to a heart disability. REMANDED Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for depression, to include as due to medication taken for a heart disability is remanded. Entitlement to service connection for residuals of a stroke, to include as due to a heart disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1958 to October 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in March 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. As an initial matter, in addition to the claims listed in the Issues section above, the Veteran has also claimed entitlement to service connection for erectile dysfunction and entitlement to service connection for tremors. Those claims were denied in a rating decision from April 2019, and he filed a VA Form 10182 Notice of Disagreement (NOD) in June 2019. By filing the VA Form 10182 for those two issues, the Veteran opted into the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). As the Veteran had selected the Hearing Board Review option when filing his AMA NOD, the issues were certified and addressed during the March 2021 Board hearing before the undersigned. Having said that, because those two issues have been certified to the Board under the AMA appeals stream, as opposed to the Legacy stream, they will be addressed by the Board in a separate Decision. 38 C.F.R. § 19.2(d). In the current Decision, the Board will only focus on those issues certified to the Board under the Legacy system, as identified above. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for a bilateral eye disability; service connection for traumatic brain injury (TBI); service connection for peripheral neuropathy of the bilateral upper extremities; service connection for peripheral neuropathy of the bilateral lower extremities; service connection for a heart disability; service connection for depression, to include as due to medication taken for a heart disability; service connection for residuals of a stroke, to include as due to a heart disability is remanded. The Board notes that there is evidence within the claims file that his military personnel records and service treatment records are unavailable, as they were housed in a section of the National Personnel Records Center's St. Louis storage facility which burned in a 1973 fire. Under such circumstances VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of this claim is undertaken with this duty in mind. The cited case law does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). The RO issued a formal finding of unavailability of the records, following an April 2017 response letter from the National Personnel Records Center (NPRC). In May 2017, the RO advised the Veteran of alternative methods of supporting his claim, including the Veteran's own submission of any service treatment records in his possession. Details of where additional records may be located was given by the Veteran during his March 2021 Board Hearing. During that hearing, the Veteran testified that while in service he had a bleeding gum disease which may have caused some of his claimed disabilities. He also testified that he was involved in a motor vehicle crash, that also could be responsible for some of his claimed disabilities. Importantly, the Veteran identified a number of VAMC facilities where he has sought treatment over the years, and many of those records have not been associated with the claims file. The Veteran testified that he was treated at VAMC facilities located in Beaumont, TX, Pittsburgh, PA, Los Angeles, CA, New Haven, CT, and the "hospital in the Panama Canal Zone." The Veteran indicated that following the vehicle accident and while he had bleeding gums, he sought treatment while in the military at the Panama Canal Zone hospital. The Board notes that only a limited number of VAMC records are available from those facilities, and no records are available prior to the year 2000, which is more than four decades following the Veteran's separation from service. Such records may contain additional evidence necessary for the adjudication of the Veteran's claims. In consideration of the Board's heightened duty to assist, the Board finds that a remand for additional records is required. See O'Hare, Id. The RO should make additional efforts to contact the Veteran and ask him the approximate years that he received treatment from those VAMCs that he identified during his March 2021 Board hearing. Particular emphasis should be given to obtaining records from the Panama Canal Zone hospital, where the Veteran has testified to receiving treatment during his time in the military. The Veteran also has not been given a VA examination for any of his claimed disabilities. Therefore, following the retrieval of such records and their association with the claims file, the Veteran should be scheduled for a VA examination(s) for each of his claimed disabilities, so that etiological opinions may be rendered. See 38 U.S.C. § 5103A (d)(2); See further, McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Board notes that the most recent correspondence letters within the Veteran's claims file have been returned as undeliverable. Thus, pursuant to VA's heightened duty to assist, additional efforts should be made to contact the Veteran to ensure that his listed address is correct, so that he may continue to receive correspondence from VA. The matters are REMANDED for the following action: 1. The RO should take appropriate steps to verify and/or update the appellant's current mailing address, to include contacting his Representative and/or any other appropriate entity. 2. Following the completion of Step 1, contact the Veteran to inquire where any/all medical records may be obtained in relation to his claimed disabilities. Following that, make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. An exhaustive search compliant with 38 C.F.R. § 3.159 must be conducted, and upon completion, a record of such search must be included within the claims file. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO is reminded that the Veteran has provided testimony that he has been treated at VAMC facilities located in Beaumont, TX, Pittsburgh, PA, Los Angeles, CA, New Haven, CT, and a "hospital in the Panama Canal Zone." The Veteran should be contacted for additional information if necessary, including the approximate timeline that the Veterans sought treatment at each of those facilities. 3. Following the completion of Steps 1-2, regardless of the results of that search, forward the Veteran's claims file to an appropriate clinician(s) for a VA examination(s), to determine the nature and etiology of the Veteran's claimed bilateral eye disability, TBI, peripheral neuropathy of the bilateral upper and lower extremities, heart disability, depression, and residuals of a stroke. Multiple VA examination(s) should be scheduled with appropriate clinician(s) as deemed necessary. The claims file must be made available to and reviewed by the examiners. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the suitable professional is asked to confirm whether or not the Veteran has a current diagnosis of any of the claimed disabilities. For any diagnosis identified, the reviewing clinician should respond to the following: (a.) Is it at least as likely as not that the diagnosed disability was incurred in, or otherwise related to, his time on active duty? In rendering this opinion, the examiner's attention is drawn to the March 2021 Board hearing, where the Veteran provided competent testimony as to each of the claimed disabilities. The clinician is also advised that the Veteran is competent to report his symptoms and history. Such reports by the Veteran must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period to respond. The Veteran 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. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, Associate 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.