Citation Nr: 1209511 Decision Date: 03/14/12 Archive Date: 03/28/12 DOCKET NO. 09-06 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to increases in the ratings for right leg phlebitis (currently assigned ratings of 40 percent from March 14, 2011 and 20 percent prior to that date). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Michelle A. Marshall, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who had active service from July 1969 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal a May 2007 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for right leg phlebitis, rated 10 percent, effective July 22, 2002. An interim (April 2011) rating decision assigned staged increased ratings (of 40 percent effective March 14, 2011, and 20 percent prior to that date. The Veteran continues to pursue an appeal in the matter. The issue is characterized to reflect that "staged" ratings are assigned, and that both "stages" are on appeal. In October 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. At the hearing the Veteran submitted additional evidence with a waiver of RO initial consideration The Veteran had also initiated an appeal in the matter of the rating for his diabetes. After a statement of the case (SOC) was issued in the matter in January 2009, the Veteran indicated (on a VA Form 9 dated March 16, 2009) that he was limiting his appeal to the matter of the rating for right leg phlebitis. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND A review of the record found that further development of the evidence is necessary to satisfy VA's duty to assist the Veteran. As is noted above, the evaluation period for the Veteran's phlebitis begins in 2002. The criteria for rating post-phlebitic syndrome (38 C.F.R. § 4.114, Code 7121) provide for a 40 percent rating when there is persistent edema and stasis pigmentation (a 60 percent rating requires additional persistent ulceration). In an April 2004 (long prior to the effective date currently assigned for the 40 percent rating) statement in support of the Veteran's claim, his private provider (Dr, JSS) who has indicated he has been treating the Veteran since approximately 1987) indicated that the Veteran's phlebitis is manifested by both edema and stasis pigmentation changes. However, the treatment records from Dr. JSS associated with the claims file do not reflect the manifestations he reports. The Dr. JSS treatment records associated for the claims file are rather sparse, and clearly incomplete. Given the length of the evaluation period (and that this is an appeal from the initial rating assigned with a grant of service connection, with "staged" ratings for consideration), all records of treatment the Veteran has received for phlebitis since the award of service connection for such disability are critical evidence, and must be secured. The Veteran's co-operation (by providing releases for the private records) is required in this matter. The Veteran is advised that under a governing regulation where evidence requested in connection with a claim for VA benefits is not received within a year of the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). Any updated VA treatment records are also critical evidence in this matter, are constructively of record, and must be secured. Furthermore, the Veteran last underwent a VA examination to evaluate his right leg phlebitis in September 2004. In light of the allegations of worsening and length of the time interval since, a contemporaneous examination is necessary. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United Stated Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Here, the Veteran is not working and receives SSA disability benefits. In June 2008 correspondence he stated "I'm now [and] have been for [eight years], on 100% disability with Social Security because of the phlebitis of my right leg." This raises the issue of entitlement to a TDIU rating, which requires development and RO initial adjudication. Notably, SSA has certified that their records pertaining to the Veteran are unavailable. Consequently, development for such records is not required. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to provide the appropriate releases, and the RO should secure for the record copies of the complete records of all treatment he has received for his right leg phlebitis from Dr. J.S.S., and in particular all records of such treatment since July 2002. [If the Veteran fails to provide the releases for records within a year following the request, the claim must be further processed under 38 C.F.R. § 3.158(a).] If he provides the releases and the provider does not respond to VA's request, the Veteran should be so advised, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. The RO should also secure for association with the claims file complete copies of updated (since March 2011) records of all VA treatment the Veteran has received for his right leg phlebitis. 2. When the development requested above is completed (and only if the Veteran has co-operated with the requests for private records of his treatment), the RO should then arrange for the Veteran to be examined by an appropriate physician to ascertain the current severity of his right leg phlebitis. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. The examiner must specifically note the presence of absence of persistent edema, the nature and extent of any associated dermatological changes, and whether of not there is evidence of persistent ulceration. The examiner also comment regarding the effect the manifestations found would be expected to have on employability. The examiner must explain the rationale for all opinions. 3. The RO should fully develop and adjudicate the matter of entitlement to a TDIU rating. The Veteran should be advised of the determination. 4. The RO should then readjudicate the matter of the ratings assigned for right leg phlebitis. If the benefits sought remains, the Veteran and his attorney should be furnished an appropriate supplemental SOC, and afforded the opportunity to respond before the matter is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2011).