Citation Nr: 1334436 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-36 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a disability rating in excess of 60 percent from June 14, 2006, for chronic pulmonary emboli associated with thrombophlebitis of the left leg and varicose veins. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the above Department of Veterans Affairs (VA), Regional Office (RO). In January 2013, the Board issued a decision denying disability ratings in excess of 10 percent prior to March 6, 2009 and in excess of 20 percent since that date for thrombophlebitis and varicose veins of the left leg under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7121 (2013). The Board did however, assign a separate disability rating of 60 percent for pulmonary emboli associated with thrombophlebitis and varicose veins of the left leg, effective from June 14, 2006, under 38 C.F.R. § 4.97, DC 6817. The Veteran appealed the Board's January 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2013 order, the Court granted the parties' Joint Motion to partially vacate and remand the Board's January 2013, decision. Pursuant to the actions requested in the Joint Motion, the issue of entitlement to a disability rating in excess of 60 percent from June 14, 2006, for chronic pulmonary emboli associated with thrombophlebitis of the left leg and varicose veins was remanded to the Board for further proceedings and compliance with the directives specified in the Joint Motion. 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 As noted in the Introduction, the Court granted a Joint Motion in which the parties agreed that the Veteran's claim for a disability rating in excess of 60 percent from June 14, 2006, for chronic pulmonary emboli associated with thrombophlebitis of the left leg and varicose veins should be remanded. The parties to the Joint Motion noted that the most recent examination the Board relied upon to evaluate the Veteran's thrombophlebitis of the left leg and the associated manifestations/disabilities including pulmonary emboli was in March 2009. At that time, the examiner's clinical analysis/assessment of the claim pertained specifically to post thrombophlebitis of the left extremity. The parties agreed that given the Board's expressed recognition of the distinct symptomatology and criteria regarding the thrombophlebitis disability and pulmonary emboli disability, the Board erred in not adequately addressing whether the medical evidence was sufficient to properly evaluate the Veteran's pulmonary emboli disability associated with his thrombophlebitis of the left leg. Based on the foregoing, and consistent with the Court's August 2013 Order, the Board finds that this matter should be remanded, and that upon remand, the Veteran should be provided a VA examination in connection with the claim, and that the RO should request any additional VA records. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers that have treated him for his chronic pulmonary emboli associated with thrombophlebitis of the left leg and varicose veins since June 2006. Document the efforts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA/ Veterans Benefits Management System (VBMS) folders (as appropriate). 2. Then schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the current severity of his service-connected chronic pulmonary emboli associated with thrombophlebitis of the left leg and varicose veins. The claims folder must be made available to the examiner for review, and the examination report should include discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the examination report. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should indicate whether the Veteran has evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale; or pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale. The examiner should also provide an opinion as to the effect that the service-connected connected chronic pulmonary emboli associated with thrombophlebitis of the left leg and varicose veins has, if any, on the Veteran's employment and daily life. Specifically, the examiner should render an opinion as to whether the disability causes marked interference with the Veteran's employment, or the need for frequent periods of hospitalization or otherwise precludes the Veteran from engaging in substantially gainful employment. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the increased rating claim on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and give them an appropriate time period in which to respond. All evidence should be reviewed, to include evidence submitted since the most recent SSOC. The Veteran 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 or by the Court 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). _________________________________________________ Michael J. Skaltsounis Acting 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) (2012).