Citation Nr: 1237668 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 05-39 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable rating from March 23, 2005, to September 21, 2011, and in excess of 60 percent from September 22, 2011, for peripheral vascular disease of the right lower extremity. 2. Entitlement to an initial compensable rating from March 23, 2005, to September 21, 2011, and in excess of 60 percent from September 22, 2011, for peripheral vascular disease of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active service from November 1982 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In October 2010, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Also, in June 2011, the Board remanded these issues in addition to the issue of service connection for a low back disorder for further development. Following the Board's Remand development, and in a June 2012 rating action, the Appeals Management Center (AMC) granted service connection for degenerative disc disease L5-S1. As there is no indication that the Veteran has disagreed with the rating or effective date assigned to his now service-connected lumbar spine disability, the Board concludes that only the issues of entitlement to initial increased ratings for bilateral lower extremity disabilities remain on appeal. Also, in a June 2012 rating action, the Appeals Management Center (AMC) concluded that a 60 percent rating for each lower extremity disability was warranted from the date of a VA examination, September 22, 2012. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35, 38 (1992). The Veteran has not suggested that these increased evaluations would satisfy his appeal for higher evaluations of his lower extremity disabilities. Nor has he otherwise suggested that the maximum ratings available for his bilateral lower extremity disabilities are not being sought. Thus, the Board concludes that the issues of entitlement to higher initial ratings for bilateral lower extremity disabilities remain before the Board. As discussed in detail below, the Board finds that another remand is warranted for the issues remaining on appeal. Thus, this appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND Regrettably, another remand is necessary. Review of the Veteran's Virtual VA claims file indicates that, in connection with a service connection claim, he was afforded a fee-based examination in May 2011. Such examination evaluated the service-connected peripheral vascular disease of the Veteran's lower extremities and provided information pertinent to apply the appropriate rating criteria. It appears that this examination was added to the Veteran's Virtual VA claims file in May 2011. No hard copy of this examination appears in the Veteran's claims file. Unfortunately, at the time of the May 2011 fee-based examination, the Board did not have access to veterans' Virtual VA claims files. Based on the Veteran's October 2010 testimony that his disabilities had worsened in severity since a June 2009 VA examination, the Board remanded these issues in June 2011 to afford the Veteran a new VA examination. Subsequent to the Board's June 2011 Remand, access to veterans' Virtual VA claims files was finally granted. Pursuant to the Board's June 2011 Remand instructions, the Veteran was afforded a new VA examination in September 2011. As discussed in the Introduction, the Veteran was awarded increased ratings of 60 percent for each leg effective September 22, 2011, as a result of the September 2011 VA examination. In June 2012, the AMC issued a supplemental statement of the case (SSOC) readjudicating the Veteran's claims as well as the rating action awarding the increased ratings. It does not appear that the AMC considered the findings shown at the May 2011 examination in readjudicating the Veteran's claims. In the lists of evidence reviewed in the June 2012 SSOC and rating action, the May 2011 examination was not listed, nor was such examination discussed in the reasons and bases portions of the SSOC and rating action. As the May 2011 fee-based examination was not addressed in either the June 2012 SSOC or rating action, the Board concludes that the AMC did not consider such evidence in readjudicating the Veteran's claims. Therefore, the Board concludes that a remand is necessary for the issuance of a new SSOC that considers the May 2011 fee-based examination. See 38 C.F.R. §§ 19.31, 19.37 (2011). Additionally, the record indicates that the Veteran receives continuous treatment from the VA Medical Center (VAMC) in Atlanta, Georgia. Thus, records of ongoing peripheral vascular disease treatment that the Veteran has received since May 2011 should be obtained and associated with the claims folder on remand. 38 U.S.C.A. § 5103A(c) (West 2002) & Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of peripheral vascular disease treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that he may have received at the VAMC in Atlanta, Georgia since May 2011. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then readjudicate the issues on appeal-as they are listed on the title page of this Remand. In readjudicating the issues, the AMC should specifically address the May 2011 fee-based examination. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the RO. The Veteran has the right to submit additional evidence and argument on the matters that 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ THERESA M. CATINO 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).