Citation Nr: 21072088 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-32 315A DATE: December 2, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for varicose veins of the right lower extremity, prior to April 17, 2013, is remanded. Entitlement to an increased rating in excess of 20 percent for varicose veins of the right lower extremity, from April 17, 2013, is remanded. Entitlement to an initial rating in excess of 10 percent for varicose veins of the left lower extremity, prior to April 17, 2013, is remanded. Entitlement to an increased rating in excess of 20 percent for varicose veins of the left lower extremity, from April 17, 2013, is remanded. Entitlement to an effective date earlier (EED) than April 17, 2013, for an increased rating in excess of 20 percent for varicose veins of the left lower extremity is remanded. Entitlement to an effective date earlier (EED) than April 17, 2013, for an increased rating in excess of 20 percent varicose veins of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1963 to June 1964. By way of procedural background, the Board notes that these claims were previously before the Board in October 2020 when the Veteran's claims regarding increased ratings and earlier effective dates for his varicose veins were denied. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By way of an Order that accepted a September 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the Board's decision due to the Board/VA's failure to ensure that VA satisfied its duty to assist and notify the Veteran's representatives. As such, these claims are again before the Board. The Board notes that the Veteran was initially represented by the Puerto Rico Public Advocate for Veteran Affairs (PRVA) when he was initially granted service connection for his varicose veins of the bilateral lower extremities in October 2011. In that rating decision, the Veteran was assigned a 10 percent rating for both legs, however, the Veteran filed a timely Notice of Disagreement (NOD) that same month contesting the rating assigned. During this time, concurrently, the Veteran filed claims for service connection for various other disabilities, to include a psychiatric disorder, erectile dysfunction, hypertension, and coronary artery disease. These claims for service connection were initially denied in a separate rating decision in May 2012. In September 2012, the VA received a new duly executed power of attorney (VA Form 21-22) from the Veteran, assigning a private attorney Kathy Liberman, Esq. as his representative. However, a close review of the VA Form 21-22 reveal that such representation is limited to only the Veteran's claims for service connection for psychiatric disorder, erectile dysfunction, hypertension, and coronary artery disease. As such, the Veteran's initial representative, PRVA, retained representation for all remains issues, to include the pending claims for increased rating. On April 17, 2013, the VA received a statement from the Veteran, which, among other things, requested an update on his appeal for increased rating for his service-connected varicose veins. This letter, was later construed by the RO as a claim for increased rating, ignoring the previous NOD filed after the initial grant of service connection noting earlier, which was filed in a timely manner. This claim for increased rating was granted in an April 2014 rating decision, and the Veteran's 10 percent rating for viscose veins for each leg was increased to 20 percent, effective April 17, 2013, the date the RO incorrectly assumed was the date of the claim; this rating decision was properly sent to the PRVA. In April 2014, the Veteran filed a timely NOD contesting the rating and effective date assigned for his bilateral varicose veins. During this period after the NOD, the Veteran filed and appealed several other claims for service connection, which were developed by the RO; however, no Statement of the Case (SOC) was issued for the Veteran's claims for increased rating or earlier effective date. In November 2018, the claims, to include several claims for service connection, was ultimately remanded by the Board for further development and issuance of an SOC by the RO. This remand from the Board, incorrectly listed the Kathy Lieberman, Esq. as the attorney of record, for all the claims, and a copy of the remand was only copied to her, and not PRVA. In July 2020, the RO issued an SSOC for all issues, to include the Veteran's increased rating and earlier effective date, however, again only noting the private attorney of record. To this end, the Board notes that a close review of all notices going forward from the VA has only copied the Veteran's private attorney, with no notices given to the PRVA; this includes the Board's ultimate denial of an earlier effective date and increased rating for his claimed varicose veins in October 2020. The September 2021 JMR explicitly found that proper notice was not given to the Veteran's proper representative for his claims for increased rating and earlier effective date, which was PRVA. As such, remand is required for proper notification to be given to his duly assigned representative for these claims, and for the VA to fulfill its duty to the Veteran. The matters are REMANDED for the following action: 1. First, the AOJ should send the Veteran, and the appropriate representative, here the PRVA, a notice letter in connection with his claims regarding increased rating and earlier effective date for his varicose veins. This notice should include copies of all the decision since the Veteran's April 2013 rating decision, to include all Board notices and decisions, to include herein. 2. Allow an appropriate amount of time for the Veteran or his representative to acquired and/or submit any additional evidence and argument to support such claims. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the service connection claims on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.