Citation Nr: 0812057 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-31 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for varicose veins, right lower extremity. 2. Entitlement to an initial evaluation in excess of 10 percent for varicose veins, left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1962 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the evidence not of record that was necessary to substantiate his service connection claims and of which parties were expected to provide such evidence by correspondence dated in October 2003. The United States Court of Appeals for Veterans Claims, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. It was further noted that regarding the disability-rating element, in order to comply with section 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided, that is necessary to establish a disability rating for each of the disabilities contemplated by the claim and allowed under law and regulation. An additional notice regarding these elements was provided to the veteran in correspondence dated in April 2006. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). The veteran should be sent another VCAA letter that fulfills the requirements enumerated in Vazquez-Flores. The revised VCAA duty to assist also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. In this case, the Board recognizes that the last VA examination was conducted in April 2005. While the April 2005 VA examiner indicated that the veteran had some moderate swelling in his legs, she did not state whether the swelling was intermittent or persistent. Additionally, in his September 2005 statement submitted with his VA form 9, the veteran essentially contended that his condition had worsened since his April 2005 VA examination. Consequently, a new VA examination is required to ascertain the current severity of the veteran's symptoms attributable to his service-connected varicose veins. In light of the veteran's assertions and the notice requirements of Vazquez-Flores v. Peake, the Board finds additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002), and Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) are fully complied with and satisfied. Specifically, the AMC/RO should send the veteran a letter which details the need for him to show a worsening or increase in severity of his disability and the effect that worsening has on the claimant's employment and daily life. The letter should include the rating criteria set out by 38 C.F.R. § 4.104 Diagnostic Code 7120 (2007). 2. The AMC/RO should contact the veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers who treated the veteran for his varicose veins since April 2005. After the veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. The veteran should be scheduled for an appropriate VA examination for the purpose of evaluating the severity of the veteran's service-connected varicose veins. All indicated tests and studies are to be performed. The claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the examiner's report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Following a review of the record and interview and evaluation of the veteran, the examiner is to indicate which of the following paragraphs (a), (b), (c), (d), or (e), best describes the symptomatology of the varicose veins: (a) Massive board-like edema with constant pain at rest; (b) Persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; (c) Persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; (d) Persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema; (e) Intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. Sustainable reasons and bases must be listed for any opinion given. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completion of the above and any additional development deemed necessary, any issue remaining on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the veteran should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2005). _________________________________________________ RENÉE M. PELLETIER 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).