Citation Nr: 1617105 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 11-01 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for right knee condition, to include as secondary to service-connected chronic venous insufficiency with lymphedema, right lower extremity. 2. Entitlement to service connection for left ankle condition, to include as secondary to service-connected chronic venous insufficiency with lymphedema, right lower extremity. 3. Entitlement to a disability rating in excess of 30 percent for chronic venous insufficiency with lymphedema, right lower extremity. 4. Entitlement to a total disability rating based on individual unemployability due to on service connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1988 to July 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision by the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO). The issue of entitlement to service connection for a back disability, to include as secondary to the service-connected chronic venous insufficiency with lymphedema, right lower extremity, was raised in the Veteran's hearing before the Board in March 2016, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2015). REMAND Concerning the issues of entitlement to service connection for right knee and left ankle conditions, the Board notes that the Veteran has not been afforded VA examinations. In a claim for service connection, VA's duty to assist the Veteran includes providing 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 that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/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. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2015). In this case, in his March 2016 hearing before the Board, the Veteran testified that he had arthritis in his right knee and that his left ankle had to be fused. He also testified that both of these disorders were related to his service-connected right lower extremity disability. A VA examination is necessary to determine if the Veteran's right knee and left ankle conditions were caused or aggravated by his service-connected chronic venous insufficiency with lymphedema, right lower extremity. Id. Concerning the issue of entitlement to a disability rating in excess of 30 percent for chronic venous insufficiency with lymphedema, right lower extremity, during his March 2016 hearing before the Board, the Veteran testified that he received treatment at the Portland, Oregon and Phoenix, Arizona VA Medical Centers (VAMCs). He further testified that he received treatment at the Northwest Community-Based Outpatient Clinic, and was hospitalized in October 2015. The Veteran's last treatment records in his electronic claims file are in February 2012. On remand, the RO should attempt to obtain and associate with the Veteran's electronic claims file all VA and private treatment records since that time. Additionally, the last examination to evaluate his service-connected chronic venous insufficiency with lymphedema, right lower extremity, was in October 2008. In his March 2016 hearing, the Veteran testified that his service-connected right lower extremity disability had increased in severity. In light of the foregoing, the Veteran should be provided a new VA examination to ascertain the severity of his service-connected chronic venous insufficiency with lymphedema, right lower extremity disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In his March 2016 hearing before the Board, the Veteran testified that he used to work as an engineer, but that eight years ago he had to leave his job because of his service-connected chronic venous insufficiency with lymphedema, right lower extremity disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A new VA examination is necessary to fully assess the Veteran's ability to function in most employment settings due to his service-connected disabilities. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims to include medical records from his hospitalization in 2015. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of his response, the RO must attempt to obtain the Veteran's VA outpatient treatment records from February 2012 to the present, to include all treatment at the Portland, Oregon and Phoenix, Arizona VAMCs, and treatment at the Northwest Community-Based Outpatient Clinic. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Upon completion of the above development, the Veteran must be afforded an appropriate VA examination to determine the etiology of his right knee condition. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All pertinent symptomatology and findings, and the functional effects of the right knee condition must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. a. The examiner must state whether the Veteran's right knee condition is related to his active military service b. The examiner must further state whether the Veteran's right knee condition was caused or aggravated to any degree by his service-connected chronic venous insufficiency with lymphedema, right lower extremity disability. 3. The Veteran must be afforded an appropriate VA examination to determine whether his left ankle disorder is related to his military service. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All pertinent symptomatology and findings, and the functional effects of the left ankle condition must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. a. The examiner must state whether any currently or previously diagnosed left ankle is related to his active military service. b. The examiner must further state whether any currently or previously left ankle disorder was caused or aggravated to any degree by his service-connected chronic venous insufficiency with lymphedema, right lower extremity disability. 4. The Veteran must be afforded an appropriate VA examination to determine the current nature, extent, and severity of his service-connected chronic venous insufficiency with lymphedema, right lower extremity disability. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. The examiner must state whether the Veteran's service-connected chronic venous insufficiency with lymphedema of the right lower extremity is manifested by (a) persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, (b) persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration, (c) persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration, or (d) massive board-like edema with constant pain at rest. All pertinent symptomatology and findings, and the functional effects of the Veteran's service-connected chronic venous insufficiency with lymphedema, right lower extremity disability must be reported in detail. 5. The Veteran must be afforded an appropriate VA examination to determine to determine the functional effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the functional effects of the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 6. The RO must review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO must implement corrective procedures. 7. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of his claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal, to include entitlement to a total rating for compensation purposes based upon individual unemployability must be adjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).