Citation Nr: 1315947 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 07-15 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for varicose veins of the lower extremities. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Appellant served on active duty for training, and/or inactive duty for training from July 1980 to April 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Chicago, Illinois, which denied entitlement to service connection for varicose veins of the lower extremities and TDIU. The Appellant presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in May 2009. A transcript of the hearing is associated with the Appellant's claims folder. This matter was previously before the Board and was remanded in August 2009 and January 2012. 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 In January 2012, this matter was remanded to afford the Appellant an opportunity for a VA examination. The claims file reflects that the Appellant failed to report to the examination scheduled in March 2012. In a February 2013 statement, the Appellant's representative stated that the examination notice was sent to the Appellant at his old address instead of his current address. The claims file reveals that the address used by VA in the paperwork requesting the examination is not consistent with the Appellant's current address of record. Therefore, the Board finds this matter must be remanded to have the RO send notice of the scheduled VA examination to the Appellant's current address of record. Of note, in Kyhn v. Shinseki, ---F.3d.---, 2013 WL 1846562 (C.A. Fed. May 3, 2013), the Federal Circuit overruled the U.S. Court of Appeals for Veterans Claims (Court's) decision in Kyhn v. Shinseki, 24 Vet. App. 228 (2011) (holding because VA's general practice does not include maintaining a hard copy of the notice letter of a VA examination, its absence from the claims file "cannot be used as evidence to demonstrate that notice was not mailed," Rather, the presumption of regularity applied, unless rebutted by clear evidence.) Accordingly, the case is REMANDED for the following action: 1. Schedule the Appellant for a VA examination and send written notice of the appointment to his current address of record. A copy of the notice letter must be associated with the Appellant's claims file or electronic file. The VA examination should address the etiology of the Appellant's bilateral varicose veins. All necessary diagnostic testing and evaluation should be performed. The examiner is also asked to review the relevant medical and other evidence in the claims file for the pertinent history, including a complete copy of this remand. After a review of the record, to include all medical records and lay statements contained therein, the examiner should offer an opinion regarding the following: A. State whether the Appellant's condition constitutes a congenital defect or a disease, as defined by VAOPGCPREC 82-90 (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease whereas a static abnormality is considered a defect). B. Even if the Appellant's varicose veins are not found to be a congenital disorder, determine whether the varicose veins clearly and unmistakably pre-existed his entry into active duty. If the examiner determines that the varicose veins did not clearly and unmistakably pre-exist service, s/he need not address the subsequent inquiries under (C) and (D). C. Is there clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e. was not aggravated during service? Regarding this determination, the examiner is asked to consider the service treatment records and the November 1980 Medical Board evaluation that the Appellant was not fit for duty as a result of this disorder. D. If there was an increase in severity of the varicose veins during service, was that increase due to the natural progress of the disease, or was it above and beyond the natural progression, including due to the physical training he completed during basic training? E. If, in the alternative, the examiner determines the bilateral varicose veins disorder did not clearly and unmistakably preexist the Appellant's service, then an opinion is needed as to the likelihood (very likely, as likely as not, or unlikely) this claimed condition had its onset during his service or is otherwise etiologically related to his service and, in particular, to the type of physical activity alleged. Note: If at all possible, the examiner should try and provide more definitive comment on the determinative issue of causation with respect to all opinions requested. If the examiner cannot provide an opinion without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis of the opinion must be provided or apparent upon a review of the record. 2. Then readjudicate this claim in light of the additional evidence. If this claim is not granted to the Appellant's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ C. CRAWFORD 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).