Citation Nr: 1303074 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-06 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating higher than 30 percent for residuals of cold weather injury, right lower extremity. 2. Entitlement to a rating higher than 30 percent for residuals of cold weather injury, left lower extremity. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from April 1949 to April 1950 and from October 1950 to June 1951. This appeal to the Board of Veterans' Appeals (Board) is from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159 (2012). I. Reexamination for Cold Weather Injuries of Bilateral Lower Extremities The Veteran's service-connected cold weather injuries of his left and right lower extremities must be reexamined to reassess their severity. Currently, the residuals of a cold injury for each lower extremity has been assigned an individual 30 percent rating under 38 C.F.R. § 4.104 (diseases of the heart), DC 7122, for cold injury residuals. Moreover, the Veteran is already in receipt of an award for a total disability rating based on individual unemployability (TDIU), based on his service-connected PTSD and cold weather injuries of his bilateral lower extremities. The Veteran reported he last worked full-time in 1984, as a warehouse clerk. Further, in this regard, the June 2008 VA examiner noted the Veteran's complaints of swelling, constant stinging pain, and numbness in his lower legs and concluded "...this may cause functional impairment due to service-connected disabilities and this may cause impairment impacts on physical and sedentary employment." The Board notes his last VA compensation examination for cold weather injuries was provided in January 2009. The January 2009 VA examiner noted the Veteran denied edema and on physical examination, found no edema in either foot. The examiner, based on X-ray testing results, diagnosed bilateral foot degenerative joint disease (DJD/arthritis) and bilateral foot neuropathy. The examiner opined that "the effect of the condition on his usual occupation is none. The effect of the condition on [the Veteran's] daily activities is pain, numbness and tingling of bilateral feet." However, the examiner did not appear to note any particular functional impairment due to such symptoms. Since that last examination, the Veteran indicates that the January 2009 examination was inaccurate. See September 2009 statement. In particular, the Veteran disputed the examiner's finding that he did not have edema. To the contrary, the Veteran reported that he spends most of his time in his chair with his legs and feet propped up, presumably due to the alleged swelling. Id. In addition, he asserted that his VA treating physicians had noted that his feet and legs are swollen most of the time. Id. A review of his recent VA treatment records shows that on July 11, 2012, a Houston VA Medical Center treating physician recorded his reported symptoms of "having swelling in legs up to just below knees for last few months all day despite elevation." Accordingly, the VA treating physician diagnosed edema of the lower legs, and increased his prescription medication dosage to treat the condition. Additional complaints of swelling in his feet and legs were noted by VA treating clinicians on December 6, 2007; March 12, 2009, December 7, 2009. There appear to be conflicting findings by the June 2008 and January 2009 VA examiners, which respectively found and rejected the notion that he has edema of his feet and legs. Similarly, the June 2008 and January 2009 VA examiners respectively found and rejected the notion that his cold weather injuries produce functional and occupational impairment. The conflict in the medical findings of record needs to be resolved by reexamination of these disabilities. Altogether, there is sufficient evidence to warrant another VA compensation examination to confirm if the disability has materially worsened. 38 C.F.R. § 3.327 (2012); VAOPGCPREC 11-95 (April 7, 1995) (explaining that while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). II. Outstanding Treatment Records As an ancillary matter, the AMC needs to confirm if there are any outstanding private or VA treatment records, and if so, obtain them before deciding his appeal. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(1) and (2). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the claims file all relevant VA, or private medical records that may be identified by the Veteran, that are not already of record. 2. After obtaining any outstanding records, an appropriate VA examination should be scheduled to determine the level of severity of the Veteran's service-connected cold injury residuals of the left and right lower extremities. All indicated tests should be accomplished. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected cold weather injuries of the left and right lower extremities, including any resulting functional impairment and/or occupational impairment. All conclusions and opinions expressed should be accompanied by supporting rationale. The claims folder should be made available to the examiner in connection with the examination. 3. Then readjudicate the claims in light of any additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a Supplemental SOC (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. 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. 2012). _________________________________________________ F. JUDGE FLOWERS 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) (2012).