Citation Nr: 0811051 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 97-30 567 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for claimed varicose veins. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 RO rating decision. The veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in June 2001. The Board remanded the case to the RO for further development in October 2001. In February 2004, the Board issued a decision denying the claim. The veteran thereupon appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2007, the Court issued a Judgment that vacated the February 2004 decision by the Board and remanded the case back to the Board. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC for actions in compliance with the Court's Judgment. VA will notify the appellant if further action is required on his part. REMAND The Court's Judgment held that the VA medical examination in January 1997, on which the Board had relied, was inadequate because the examiner did not have access to the claims file or provide an opinion as to whether the veteran's varicose veins were related to military service. The Judgment also found that VA had failed to consider the veteran's subjective account of varicose veins beginning in military service. The RO is accordingly directed to afford the veteran a VA medical examination and to thereafter readjudicate the claim in compliance with the terms of the Court's Judgment. The veteran is hereby advised that failure to report to the scheduled examination(s) may result in denial of the claim. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility at which the examination is to take place. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2007); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Specifically, the RO should advise the veteran of the elements required to establish entitlement to service connection per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and should also advise the veteran to send VA all evidence in his possession not already of record that is relevant to his claim. Hence, in addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, this case is hereby REMANDED to the RO for the following actions: 1. The RO should sent to the veteran a letter advising him of the elements required to support his claim of service connection and of the respective obligations of VA and the claimant in obtaining evidence. The letter should advise the veteran to provide VA with any evidence in his possession relevant to his claim that is not already of record. 2. The RO should schedule the veteran for a VA examination to determine the nature and likely etiology of the claimed varicose veins. The entire claims file, including service treatment records (STR), must be made available to the physician designated to examine the veteran, and the examiner should indicate in the report that the entire file was reviewed. The examination report should include discussion of the veteran's documented medical history regarding his varicose veins as shown in STR and post-service medical records, as well as the veteran's own statements regarding his medical history and symptomology. All appropriate medical diagnostics should be accomplished, and all clinical findings should be reported in detail. The examiner should state an opinion as to whether it is at least as likely as not (i.e., 50 percent or more likely) that the veteran currently has a disability manifested by varicose veins or residuals thereof that had its clinical onset during his military service or that is otherwise related to another event or incident of his military service. The examiner should provide a clinical rationale for his or her opinions, and should discuss both the medical and lay evidence of record. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should so indicate. 3. To help avoid future remand, the RO must ensure that the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the required actions, and any additional notification and/or development deemed warranted, RO should adjudicate the veteran's claim for service connection in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted, the RO should furnish to the veteran an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and should afford him a reasonable opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to afford due process; it is not the Board's intention to imply whether the benefits requested should be granted or denied. The veteran need take no action unless otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2007). _________________________________________________ STEPHEN L. WILKINS 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) (2007).