Citation Nr: 1602675 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 14-17 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for chronic venous insufficiency, bilateral lower extremities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1988 to March 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Saint Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in December 2013. The RO issued a statement of the case (SOC) in March 2014. The Veteran subsequently perfected his appeal with a VA Form 9 in April 2014. In November 2015, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2015). As an initial matter, the medical evidence of record supports a current diagnosis of chronic venous insufficiency. The record also reflects that the Veteran has received treatment for his chronic venous insufficiency since at least early 2004. Thus, the Board finds that the Veteran has a current disability for purposes of establishing service connection. The Veteran contends that his bilateral lower extremities chronic venous insufficiency is due to his time in service. The Veteran was not provided with a VA examination. In this regard, a VA examination is necessary, and all treatment records are to be associated with the claims file. The Veteran's service treatment records do not contain any reference or evidence of a venous condition. The Veteran filed a claim for bilateral varicose veins in June 2013, and has consistently stated that he has had bilateral varicose veins since his time in service. In November 2015 the Veteran was afforded a Video Conference Board hearing with the undersigned. The Veteran testified to first noticing dark small lines on his legs in September 1990 while in service. The Veteran testified that beginning in in 1994 his veins would distend from the inner part of his legs. The veteran's mother submitted a statement in June 2013, stating that varicose veins are not a hereditary issue in their family, and that the Veteran did not have issues with his legs while in high school. The Veteran's mother stated that following his military Ranger school training in 1990 that the veins in his legs were beginning to protrude and swell at night. K. R., submitted a statement in June 2013, stating that she met the Veteran in 1994, and that he had varicose veins at that time, which through the years got progressively worse. Private treatment records were received from the Hogue Vein Institute. A record from November 2013 from the Hogue Vein Institute states that as it pertained to the Veteran's chronic venous disease, the Veteran's "occupation, which involved extensive standing, was most likely an exacerbating factor." Records further indicate the Veteran had a procedure to treat his venous insufficiency in January 2005, and again in May 2013. In June 2013, Dr. C. D., signed and completed an Artery and Vein Conditions Disability Benefits Questionnaire (DBQ). The DBQ explains that the Veteran has chronic venous insufficiency, which was diagnosed in November 2004. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Given the above, the Board finds that VA's duty to provide a VA examination and obtain a medical opinion has been triggered. Thus, this issue must be remanded so that the Veteran can be provided a VA artery and vein conditions examination and a medical opinion can be obtained. Treatment records from the Bay Pines, Florida, VA Health Care System, from July 2013 are on file. Treatment records from the Fargo, North Dakota, VAMC, from October 2004 through May 2012 are on file. These records reveal a diagnosis of and treatment for varicose veins. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Under 38 C.F.R. § 3.159(c)(2), efforts to obtain federal records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain VA treatment records from the Fargo VAMC, and Bay Pines VA Health Care Center. All reasonable attempts should be made to obtain such records and VA facilities must provide a negative response if no records are found. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Ask the Veteran to provide authorization to obtain any outstanding, relevant private treatment records, to include records from The Hogue Vein Institute. After securing the necessary authorization, these records should be requested. If any of the requested private records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. Allow the Veteran an appropriate amount of time to respond. 3. After the above has been accomplished to the extent possible, schedule the Veteran for a VA artery and vein conditions examination to determine the nature of any venous disability [to include chronic venous insufficiency, and varicose veins], and to obtain an opinion as to whether such is possibly related to service. The entire claims file, to include a complete copy of this REMAND must be made available to the physician designated to examine the Veteran and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion for the following question: a) Is it at least as likely as not (50 percent probability or greater) that any current disability of the veins had its onset in or is otherwise related to the Veteran's military service? A rationale for all opinions expressed should be provided. 4. Thereafter, the AOJ must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Following the completion of the foregoing, the AOJ should readjudicate the Veteran's claim. If a claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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 2014). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).