Citation Nr: 22040303 Decision Date: 07/14/22 Archive Date: 07/14/22 DOCKET NO. 18-07 497 DATE: July 14, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent prior to January 22, 2022 and in excess of 60 percent thereafter for varicose veins in the lower left extremity is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 22, 2022 and in excess of 60 percent thereafter for varicose veins in the lower right extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from August 1972 to May 1992. These matters are on appeal from a February 2015 rating decision issued by the Regional Office (RO) in St. Petersburg, Florida. In April 2019, the Board issued a decision in which it denied initial ratings in excess of 10 percent for left and right lower extremity varicose veins. The Veteran appealed to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Partial Remand (Joint Motion), an April 2020 Court Order vacated the portion of the Board's April 2019 decision which denied increased initial ratings for varicose veins of each lower extremity and remanded the claims for action consistent with the Joint Motion. The Veteran's claims were remanded for development consistent with the issues outlined in the Joint Motion in February 2021. While on remand, the RO granted the Veteran increased evaluations for his bilateral varicose veins to 60 percent each, effective February 22, 2022. It is noted that applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As there are higher evaluations available for the service-connected bilateral varicose veins and the increased evaluations do not cover the entire period of appeal, these claims are still in controversy and shall continue to be adjudicated by the Board. Although the RO appears to have generally complied with the directives of the February 2021 Remand, a review of the record reveals that additional development may still be necessary prior to adjudication. In this regard, it is noted that the Veteran is a Navy retiree and, as indicated in a June 2021 correspondence, he has received care for his varicose veins at both VA Medical Centers and Naval Medical Centers. A review of the claims file does not show that the Veteran's complete Naval Medical Center records spanning the period of his retirement are currently associated and up to date. Although the RO attempted to obtain portions of these records during the last development period, only records prior to 2004 were requested. The Board notes that Naval records, as they are records is the possession of the federal government, are in the constructive possession of VA. Therefore, such records should be associated with the claims file independent of any request for such by the Veteran or his representative. In particular, because the latest VA examination in February 2022 has shown a significant worsening of the Veteran's disability and the Veteran appears to have been claiming such worsening many years earlier, it would be highly pertinent to obtain updated records from available sources, such as the Navy Medical Center. As the RO has only attempted to obtain records from 2004 prior, the Board finds that such development is incomplete. Therefore, upon remand, the RO should attempt to locate and obtain any records from 2004 to present from the Department of Navy. The matters are REMANDED for the following action: 1. Attempt through all proper channels and protocols to obtain the Veteran's outstanding Navy Medical Center records for his period of retirement from 2004 to present and associate such with the claims file. All attempts should be documented, and the Veteran and his representative should be apprised of the process and afforded the opportunity to furnish any records that may be in his possession. 2. Thereafter, readjudicate the appeal. N. Rippel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.