Citation Nr: 0812366 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-20 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for varicose veins, left leg with deep vein thrombosis. 2. Entitlement to a rating in excess of 10 percent for varicose veins, right leg, with deep vein thrombosis, status post removal of neuroma and varicosity removal. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active service from July 1986 to January 1996. These matters are 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 St. Petersburg, Florida, which granted a 10 percent rating for varicose veins of the left leg with deep vein thrombosis, effective September 29, 2003, and continued the 10 percent rating for varicose veins with deep vein thrombosis, status post removal of neuroma and varicosity removal of the right calf. In October 2007, the Board remanded to the RO the claims on appeal to afford the veteran a Travel Board hearing. In March 2008, the veteran testified during a hearing at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In March 2008, the Undersigned Veterans Law Judge granted the motion of the veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action, on his part, is required. REMAND The Board has determined that additional development of the record is required to ensure correct appellate review, as well as to enable VA to comply with recently-issued caselaw. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). During his March 2008 Board hearing, the veteran testified that the treatment for his service-connected disabilities included attending anticoagulation clinic every two to six weeks. He was also taking Coumadin medication. Due to his Coumadin medication, he was not able to take any other pain medication, except for Tylenol, which did not adequately relieve his pain. He also testified that he wore a prosthetic insert in his shoes and wore stockings on his legs everyday. Further, he had swelling in his legs that was painful. The swelling was partially alleviated by elevating his feet and wearing the stockings but the elevation of his feet did not alleviate the pain. Moreover, he stated that his skin was a bluish color and after he took off his stocking, his skin would itch and flake. Regarding his work, the veteran testified that the service-connected disabilities of the bilateral legs caused him to have absences from work. Regarding his daily life, he was not able to walk more than a quarter or half mile without subsequent pain. He also was not able to play basketball or other sports. The veteran's most recent VA examination was in August 2004. The veteran testified during the March 2008 Board hearing of symptoms that indicate that he is asserting that his disabilities have worsened since his most recent VA examination. Given the allegation that his disabilities have worsened and the fact that that the veteran's most recent examination was over three years ago, the veteran should be afforded a new examination to obtain pertinent findings to assess the current severity of his varicose veins of the left leg with deep vein thrombosis, and varicose veins of the right leg with deep vein thrombosis, status post removal of neuroma and varicosity removal. See 38 U.S.C.A. § 5103A(d) (West 2002); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95 (Holding in part that the Board is not required to remand an appealed claim merely because of the passage of time when an adequate examination report was originally prepared, unless the severity of the disability has increased. ).. Accordingly, the RO should arrange for the veteran to undergo a VA examination at an appropriate VA medical facility. The veteran is hereby advised that failure to report to the scheduled examination, without good cause, shall result in a denial of the claims for increased ratings. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and 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 a copy(ies) of the notice(s) of the date and time of the scheduled appointment(s) sent to him by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO must obtain and associate with the claims file all outstanding VA medical records. The claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Orlando, Florida, dated up to May 2005. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO must obtain all outstanding pertinent medical records from the Orlando VAMC since May 2005, following the procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requesting records from Federal facilities. In Vazquez-Flores, the Court found that, at a minimum, adequate Veterans Claims Assistance Act of 2000 (VCAA) notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA 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; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Regarding notice as required by Vazquez-Flores, the Board notes that the veteran has not been provided the specific notice required in relation to his claims for increased ratings. Therefore, in the interest of due process, the Board finds that the RO/AMC should send a letter to the veteran that meets the requirements of Vazquez-Flores, to include the requirements necessary to substantiate a claim for an increased rating, what evidence VA will provide, what evidence the veteran is to provide, and that the veteran should submit any evidence in his possession that pertains to the claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO should also invite the veteran to submit all pertinent evidence in his possession, and ensure that its notice meets the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), particularly as regards assignment of disability ratings and effective dates in connection with these claims. The Board notes that action by the RO is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). On remand, the RO should, through VCAA-compliant notice, give the veteran another opportunity to present information and/or evidence pertinent to the claims for increased ratings. See 38 U.S.C.A § 5103(a) (West 2002); 38 C.F.R. § 3.159(b). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain from the Orlando, Florida VAMC all pertinent records of evaluation or treatment of the veteran's varicose veins of the bilateral legs, from May 2005 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records or responses received should be associated with the claims file. 2. The RO should furnish the veteran and his representative VCAA-compliant notice specific to the claims for increased ratings for varicose veins of the left leg with deep vein thrombosis and varicose veins of the right leg with deep vein thrombosis, status post removal of neuroma and varicosity removal. The letter should include specific notice as to the type of evidence needed to substantiate the claims. The letter should also include specific notice required by Dingess/Hartman and Vazquez- Flores v. Peake (cited to above) - particularly as regards assignment of disability ratings and effective dates, as appropriate. To ensure that the duty to notify the claimant what evidence will be obtained by whom is met, the letter should include a request that the veteran provide sufficient information and, if necessary, authorization to enable VA to obtain any medical records pertaining to the matters on appeal that are not currently of record. The RO should also invite the veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. 3. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and responses from each contacted entity have been associated with the claims file, the RO should arrange for the veteran to undergo an examination, by an appropriate physician, at an appropriate VA medical facility. The entire claims file must be made available to the physician designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The physician should identify all manifestations of the veteran's varicose veins of the right and left legs. Each extremity should be evaluated separately. The physician is asked to describe whether or not there is persistent edema incompletely relieved by elevation of the extremity, stasis pigmentation or eczema, intermittent or persistent ulceration, subcutaneous induration, massive board- like edema, or constant pain at rest. A complete rationale for all opinions should be provided. 5. If the veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2007). _________________________________________________ VITO A. CLEMENTI 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).