Citation Nr: 1341124 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-43 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for service-connected residuals of cold injury of the left lower extremity with peripheral vascular disease (PVD). 2. Entitlement to a disability rating in excess of 30 percent for service-connected residuals of cold injury of the right lower extremity with peripheral vascular disease. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from December 1950 to January 1956. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran presented testimony at a November 2011 video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is included in the Veteran's VA claims folder. The Board remanded the claims for further evidentiary development in December 2011, and again in February 2013. In July 2013 the RO granted service connection and 20 percent ratings for peripheral neuropathy of each lower extremity as secondary to his service-connected cold injuries. The Veteran was informed of the decision and of his appellate rights by way of correspondence dated in October 2013 from the RO. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. 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 The Veteran seeks ratings in excess of 30 percent for his residuals of cold injury of the lower extremities with peripheral vascular disease. The Veteran's current 30 percent ratings are the maximum rating available under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7122, the code for rating cold injury residuals. However, higher ratings are available under 38 C.F.R. § 4.104, DC 7114, the code for arteriosclerosis obliterans (peripheral vascular disease). In this case the medical evidence is contradictory as to whether the Veteran experienced claudication due to PVD during the period on appeal. A VA medical opinion obtained in April 2013 is insufficient for such a determination to be made. A July 2009 VA examination diagnosed PVD of the lower extremities and testing revealed the Veteran to have ABI of 0.9 on the left and 1.0 on the right. A December 2011 VA outpatient treatment record in the Veteran's virtual file indicates that the Veteran had claudication, with pain in the calves, with walking 20 yards. The impression included claudication and PAD (peripheral artery disease). A February 2012 VA examination report indicates that the Veteran had claudication on walking less than 25 yards on a level grade at 2 miles per hour. In April 2013 a VA physician opined that the prior finding of PVD (referring to February 2012 VA report) was clearly erroneous because the ABI was greater than one. However, this opinion is insufficient as it does not address the other medical records which diagnosed PVD, in particular the July 2009 VA examination report which revealed a left lower extremity ABI of less than one. A new opinion should be obtained from a vascular surgeon. A September 2012 private medical record states that the Veteran's daughter reported that an arteriogram confirms PVD. The examiner indicated claudication. A review of the Veteran's claims file, including in virtual VA, indicates that there is no arteriogram report of record. A specific attempt to obtain a copy of the arteriogram report should be made. 38 C.F.R. § 3.159(c)(1). The Veteran's electronic claims file contains VA treatment records dated as recently as July 1, 2013. The Veteran's updated VA treatment records should be obtained. The Veteran's claim for a TDIU is inextricably intertwined with the above claims; consideration of this matter must be deferred pending resolution of these claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 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. Request that the Veteran provide the names and addresses and dates of all facilities that have outstanding records that are relevant to his claims. The Veteran should be specifically asked to identify any private facilities that have arteriogram results. Provided that any authorization necessary for the release of such documents is provided, attempt to obtain the identified records. If any records cannot be obtained, a notation to that effect should be inserted in the claims file. The Veteran should be notified of any unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Obtain copies of the Veteran's VA treatment records dated from July 2, 2013 to present. 3. Again request that the Veteran submit a completed TDIU claim in order that he can provide information to VA concerning his work and educational background. The Board takes this opportunity to inform the Veteran that the requested information is extremely important to his claim. 4. When the above actions have been accomplished to the extent possible, send the Veteran's claims file to a vascular surgeon for review. The vascular surgeon should provide a review of the Veteran's medical history, in particular, the July 2009 VA examination report reflecting a left foot ABI of 0.9 and a diagnosis of PVD; a December 2011 VA outpatient treatment record indicating that the Veteran had claudication, with pain in the calves with walking 20 yards; and a February 2012 VA examination report indicating that the Veteran had claudication on walking less than 25 years on a level grade at 2 miles per hour. The vascular surgeon is asked to opine as to whether it is at least as likely as not (50 percent probability or greater), the Veteran has experienced claudication on walking more than 100 yards, between 25 and 100 yards on a level grade at 2 miles per hour, or less than 25 yards on a level grade at 2 miles per hour at any time since June 2008 as a result of his service connected residuals of cold injury of the lower extremities with PVD. The examiner must provide a complete rationale for all opinions provided. 5. Upon completion of the above requested development, conduct any other development that is deemed warranted and readjudicate the Veteran's claims. If any benefit sought on appeal is denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ S. S. TOTH 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) (2013).