Citation Nr: 1325841 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-25 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating higher than 10 percent for varicose veins of the left lower extremity. 2. Entitlement to a rating higher than 10 percent for varicose veins of the right lower extremity. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976 and from October 1977 to August 1978. He appealed to the Board of Veterans' Appeals (Board/BVA) from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Since they require further development before being decided on appeal, the Board is remanding the claims to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran contends that his varicose veins have worsened, even since his most recent VA compensation examination in January 2009, as evidenced by his need to undergo vein stripping later that year, in June 2009. In his September 2011 substantive appeal to the Board, on VA Form 9, he stated that, while that surgery initially had helped, his varicose veins since had continued to get worse. Indeed, in an even more recent July 2012 statement in support of claim, on VA Form 21-4138, he indicated that he had been told that he will need further surgery on his legs for his varicose veins. Another VA compensation examination therefore is needed reassessing the severity of this disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995); and Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The AMC also needs to consider all evidence received since the July 2012 supplemental statement of the case (SSOC), including recent VA treatment records, and then provide the Veteran an additional SSOC addressing this additional evidence. See 38 C.F.R. §§ 19.31, 19.37 (2012). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Obtain all of the Veteran's outstanding treatment records, whether from VA or private providers. The amount of efforts needed to be expended in obtaining these additional records (assuming they exist) depends on who has custody of them; if they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) governs if they are. So make as many attempts to obtain identified records as are necessary to comply with this VA regulation. If unable to obtain identified records, appropriately notify the Veteran of this by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claims. 38 U.S.C. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. Upon receipt of all additional records, schedule a VA compensation examination to reassess the severity of the varicose veins on the Veteran's left and right lower extremities. The claims file, including all relevant medical records concerning his evaluation and treatment of this disability, and a copy of this remand, must be reviewed by the examiner for the history of this disability. The examiner must acknowledge receipt and review of the claims file in the report of his/her evaluation. The examiner must perform all necessary diagnostic testing and evaluation and should consider the Veteran's lay statements regarding the history of this disability, his complaints, etc., and compare them with the objective clinical findings. The examiner must also provide an opinion concerning the impact of this disability on the Veteran's ability to work in a substantially gainful occupational, so should comment on whether the Veteran is unemployable because of this service-connected disability. It is most essential the examiner provide explanatory rationale for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. But the examiner is advised that, by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claims to the examiner for supplemental comment. 3. Ensure the report of the VA compensation examination addresses the applicable rating criteria. If not, return the report to obtain this additional necessary information. 38 C.F.R. § 4.2 (2012). 4. Then readjudicate these claims in light of all additional evidence received since the most recent SSOC in July 2012. If higher ratings are not granted to the Veteran's satisfaction, send him and his representative another 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 these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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. 2012). _________________________________________________ KEITH W. ALLEN 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).