Citation Nr: 1332127 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-11 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for varicose veins, right lower extremity, currently evaluated at 60 percent disabling. 2. Entitlement to an increased rating for varicose veins, left lower extremity, currently evaluated at 10 percent disabling. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from December 1982 to December 1986. This appeal to the Board of Veterans' Appeals (Board) is from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal. 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 Where the record does not adequately reveal the current state of disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). An examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Additionally, VA generally has a duty to provide an additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (Apr. 7, 1995). In conjunction with his claim for an increased rating, the Veteran was afforded a VA examination in January 2009. In this examination, the examiner noted that he had bilateral varicose veins. On his right side, there was no ulcer or eczema present, but there was elevated edema. On his left side, there was was no ulcer, eczema, or edema present. The evidence suggests his condition has worsened since this examination. A September 2009 private treatment record indicates the Veteran had a "severe progression" of swelling and discomfort in his right leg. Additionally, in his January 2010 Notice of Disagreement, the Veteran details his constant pain, an operation on his right leg subsequent to the VA examination (as confirmed by Family Medical Leave Act paperwork), and two trips to the VA emergency room. Furthermore, a July 2010 Veteran statement notes his increasing pain as well as the swelling of his feet. Given these factors, together with the time that has passed since his last VA examination, the Veteran merits a new examination to determine the current severity of his service-connected disability. In addition, any recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment, pertinent to the claim on appeal, that is not evidenced by the current record - to specifically include, but not limited to, any VA outpatient records for any treatment of varicose veins. The Veteran must be provided with the necessary authorizations for the release of any private treatment records not currently on file. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. In particular, arrange to obtain VA treatment records from the Atlanta VA Medical Center, dated since September 2008, and all records from the John Dingell VA Medical Center. 2. After the above development has been conducted, the RO/AMC will afford the Veteran a VA veins examination, to determine the degree of impairment resulting from his bilateral varicose veins of his lower extremities. a. The claims folder and a copy of this Remand will be provided to the examiner for review in conjunction with the examination. The examiner must acknowledge receipt and review of these materials in any report generated by the examination. b. The examiner will be advised: The purpose of the examination is to ascertain the severity of the bilateral varicose veins of his lower extremities. The question of the source or etiology of the disorder is only relevant to the extent that it may provide information as to the severity of the disorder. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. c. The examiner must take a complete history from the Veteran as to the nature and extent of his symptoms from approximately August 2007 (one year prior to the date of claim for an increased rating) forward. d. The examiner must indicate whether any of the following findings, if found on examination, are attributable to the effects of the Veteran's varicose veins: For the right leg, does the Veteran have: i. Persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; OR ii. Massive board-like edema with constant pain at rest. For the left leg, does the Veteran have: i. Intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery; OR ii. Persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema; OR iii. Persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; OR iv. Persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; OR v. Massive board-like edema with constant pain at rest. e. The examiner must provide an opinion as to the effect of the Veteran's varicose veins on his occupational functioning and daily activities. 3. The RO/AMC must then readjudicate the Veteran's increased rating claim. If the benefits sought on appeal remain denied, the Veteran must be provided a supplemental statement of the case (SSOC) that readjudicates his claim. The SSOC must set forth that the additional evidence has been considered and identify the relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). _________________________________________________ Vito A. Clementi 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).