Citation Nr: 21074619 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-41 372 DATE: December 15, 2021 REMANDED Entitlement to an increased rating for venous insufficiency rated as 40 percent disabling for the right lower extremity prior to September 25, 2017, and rated as 60 percent disabling for each lower extremity, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1962 to February 1965. Entitlement to an increased rating for venous insufficiency rated as 40 percent disabling for the right lower extremity prior to September 25, 2017, and rated as 60 percent disabling for each lower extremity, thereafter, is remanded. In March 2018, the Board noted that a January 2016 AOJ rating decision awarded service connection for "venous insufficiency with stasis dermatitis as secondary to the service-connected disability of degenerative changes, right ankle" and assigned a 40 percent rating for the right lower extremity effective July 28, 2015. This award appears to be based, in part, on an opinion of a VA examiner that the Veteran's right-sided cellulitis and stasis dermatitis were proximately due to trauma which caused the service-connected right ankle disability. See VA examination report dated October 2015. The AOJ did not assign a separate rating for the left lower extremity. The Veteran appealed the initial rating assigned. In a rating decision dated September 2017, the AOJ assigned separate 60 percent ratings for venous insufficiency of the right and left lower extremities, which resulted in a combined 90 percent rating when considering the bilateral factor, effective September 25, 2017. See 38 C.F.R. § 4.26. The AOJ provided no explanation why the left lower extremity venous insufficiency was not evaluated prior to September 25, 2017. The ratings for the left and right lower extremities were addressed in the Statement of the Case (SOC) as part of the issues on appeal. In prior remands, the Board has requested the AOJ to clarify whether the Veteran is entitled to a separate rating for left lower extremity venous insufficiency prior to September 25, 2017 and, if so, provide the appropriate disability rating(s) and effective date(s) of award. A November 2018 AOJ rating decision "granted" "service connection for venous insufficiency and stasis dermatitis of the left lower extremity effective September 25, 2017. However, service connection for left lower extremity venous insufficiency and stasis dermatitis had already been in effect since the September 2017 AOJ rating decision. This did not explain whether the Veteran was entitled to an effective date prior to September 25, 2017. A July 2020 Supplemental SOC (SSOC) indicated, essentially, that an effective date prior to September 25, 2017 was not warranted as "there is no evidence in the file to date that shows your left ankle venous insufficiency is associated with events or injuries in service, or aggravated by a service-connected disability." Notably, at the time of the September 2017 decision, there was no evidence linking left lower extremity venous insufficiency to service or service-connected disability. However, after the July 2020 SSOC was issued, the AOJ determined that medical opinion was deemed necessary. In July 2020, the AOJ requested a VA examination for the Veteran's venous insufficiency. The examiner was requested to opine whether the Veteran's venous insufficiency of the left lower extremity at least as likely as not caused and/or aggravated by his/her service-connected venous insufficiency with stasis dermatitis of the right lower extremity and degenerative changes of the right ankle. The entity scheduling examinations noted that, since an examination was last conducted in 2017, a new artery DBQ was needed and that the "examiner would be unable to render a medical opinion without examining the veteran." In a July 2021 Report of General Information, the Veteran stated that he was ready to report for his examination. He later stated that he wished to reschedule the examination because he "feels that the [examiner] he was supposed to see was not fit according to his background research." The matter was returned to the Board in November 2021; however, the Veteran has not been afforded a VA examination. Here, the AOJ initially granted service connection for "venous insufficiency with stasis dermatitis" without specifically identifying the left or right lower extremity. See AOJ rating decision dated January 2016. As part of the appeal for a higher initial rating, the AOJ then issued a rating decision which evaluated the right and left lower extremities entitling the issue as "[e]valuation of venous insufficiency with stasis dermatitis, which is currently 40 percent disabling, is increased to 90 percent effective September 25, 2017. See AOJ rating decision dated January 2016. The AOJ did not formally grant service connection for the left lower extremity nor provide any reason why the left lower extremity was being evaluated nor why an effective date of September 25, 2017 was assigned other than the September 25, 2017 VA examination was "the first date the evidence of record shows you[r] condition meets the criteria for a 60 percent evaluation" and that "[t]his grant of an increased evaluation is considered a partial grant of your February 19, 2016 notice of disagreement with our January 14, 2016 decision." Overall, the AOJ reasoning of record is insufficient to allow the Board to make a jurisdictional determination as to whether the left lower extremity venous insufficiency is part of the initial rating claim on appeal. The AOJ needs to explain the basis for the evaluation of the left lower extremity in the September 2017 decision - for example the left lower extremity venous insufficiency was deemed part and parcel of the already service-connected right lower extremity venous insufficiency, or there was a medical basis to service connect this disorder effective September 25, 2017, or that an error was made, or some other basis. The Board further notes that, once the VA undertakes providing a veteran with an examination, it has a duty to ensure it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The issue of whether actual examination of the Veteran is necessary to arrive at an adequate medical opinion is a medical determination. And, in this case, the issue being considered by the AOJ was whether prior to September 25, 2017 the left lower extremity venous insufficiency was caused or aggravated by service-connected disability. This involves a retroactive review of the evidentiary record and it is not clear why a current examination would be relevant absent an explanation by a competent examiner. The matters are REMANDED for the following action: 1. The AOJ need to explain the basis for the evaluation of the left lower extremity in the September 2017 decision - for example the left lower extremity venous insufficiency was deemed part and parcel of the already service-connected right lower extremity venous insufficiency, or there was a medical basis to service connect this disorder effective September 25, 2017, or that an error was made, or some other basis. The AOJ should explain why or why not the left lower extremity venous insufficiency is part of the initial rating claim appealed by the Veteran, and why the Veteran is or is not entitled to consideration of a separate rating between July 28, 2015 and September 24, 2017. 2. If necessary, schedule the Veteran for a VA examination to determine the severity of his service-connected venous insufficiency of the bilateral lower extremities, to include the opinions requested in the July 2020 exam request. If the Veteran fails to show, the AOJ should obtain a medical opinion based on record review only. The examiner must conduct all appropriate tests, studies and consultations, and elicit a full history from the Veteran regarding his symptoms. 3. Thereafter, readjudicate the Veteran's claims. If any benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case, and allow an appropriate time for response. Thereafter, return the case to the Board. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.