Citation Nr: 1802994	
Decision Date: 01/16/18    Archive Date: 01/29/18

DOCKET NO.  10-45 480		DATE


THE ISSUES

1.  Entitlement to an increased evaluation in excess of 40 percent for service-connected venous insufficiency of the right lower extremity.

2.  Entitlement to an increased evaluation in excess of 40 percent for service-connected venous insufficiency of the left lower extremity.

3.  Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU). 


INTRODUCTION

The Veteran served on active duty with the United States Navy from April 1989 to January 1993.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2017.  

The Board notes that the September 2010 statement of the case addressed the venous insufficiency issues as well as the matter of entitlement to an increased evaluation for the fracture of the Veteran's left fourth metacarpal.  The Veteran perfected an appeal of the venous insufficiency issues in her November 2010 substantive appeal (VA Form 9), but did not appeal the fracture issue.  Accordingly, it is not before the Board and is not addressed here.

Under Rice v. Shinseki, VA is required to consider a TDIU claim where it is raised by the Veteran or reasonably raised by the record during the adjudicatory process of the underlying disability.  22 Vet. App. 447, 453-54 (2009).  Although a TDIU claim was previously denied and not appealed, the Veteran continued to contend that the venous insufficiency disabilities prevent her from working.  Therefore, the Board finds that it has jurisdiction over a TDIU claim in this matter.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Veteran seeks an increased evaluation for service-connected venous insufficiency of the right and left lower extremities.  Her most recent VA examination relevant to these issues occurred in April 2013.

The Veteran testified at the September 2017 hearing that the symptoms of this bilateral disability have worsened significantly since the April 2013 examination.  Her VA and private treatment records reflect continued treatment for the venous insufficiency.  Because it appears that the bilateral disability has worsened since the last evaluation, a new VA examination is necessary.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). 

Further, the TDIU issue is intertwined with the above remanded issues and is also remanded at this time.  See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).


Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination to determine current severity of her bilateral venous insufficiency.  

2.  If the benefits sought (to include TDIU) on appeal remain denied, furnish a supplemental statement of the case before the case is returned to the Board.

The Veteran 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 remanded by the Board of Veterans' Appeals or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).


ATTORNEY FOR THE BOARD:	K. Josey, Associate Counsel

Copy mailed to:	Disabled American Veterans