93 Decision Citation: BVA 93-05892 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-44 731 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased evaluation for varicose veins of the right leg, currently evaluated as 30 percent disabling. 2. Entitlement to a total rating based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Grace Jivens-McRae, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 1991 from the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). The veteran had active service from February 1978 to February 1981. The notice of disagreement was received in July 1991. The statement of the case was issued in August 1991. The substantive appeal was received in August 1991. The appeal was docketed at the Board in October 1991. The veteran was represented at this point in his appeal by Alabama Department of Veterans Affairs. In December 1991, the Board remanded the instant claim for further medical development. A supplemental statement of the case was issued in April 1992. In May 1992, the veteran revoked his power of attorney to the Alabama Department of Veterans Affairs. He appointed Disabled American Veterans as his accredited representative at that time. An additional supplemental statement of the case was issued in August 1992. Disabled American Veterans submitted additional written argument in December 1992. REMAND January 1981 service department examination prior to service discharge and in connection with a report of medical history from the veteran disclosed right leg varicose veins and right foot plantar warts, both considered as not disqualifying. Postservice VA outpatient records in 1981 disclosed superficial bilateral varicose veins and bilateral plantar warts diagnosed as hyperkeratosis, both worse on the right. A review of the record indicates that the veteran and his representative believe that the veteran's service-connected varicose veins of the right leg are more severe than the current 30 percent evaluation reflects. The veteran asserts that he is unable to work as a mail handler because stationary standing has caused his right ankle to ulcerate. He also claims that he is unemployable based upon his service-connected disabilities. His representative argues that a compensation examination afforded the veteran in April 1992 pursuant to the Board's remand was inadequate for rating purposes. The accredited representative stated that the examiner's comments were limited, did not describe the size and location of the varicose veins, and none of the specialized tests cited in the remand were performed. Additionally, he maintains that it was clear and unmistakable error in a March 1982 rating action when the RO did not separately rate the veteran's hyperkeratosis of each foot and did not award service connection for varicose veins of the veteran's left leg. He cites Fugere v. Derwinski, 1 Vet.App. 103 (1990) as the basis for his contention. He states that the RO failed to apply the VA adjudication procedure manual (M21-1) which indicates, in pertinent part, when service connection for varicose veins in one leg has been properly granted, varicose veins subsequently developing in the second leg within three years from the day following the date of discharge from service will be considered service connected. M21-1, Part VI, para. 7.21(a) (previously M21-1, para. 50.21(a)). Additionally, the representative states that the issue of clear and unmistakable error and the evaluation of the veteran's bilateral hyperkeratosis and service connection for varicose veins of the left leg must be resolved prior to an evaluation of the veteran's claim for a total rating based upon unemployability. Harris v. Derwinski, 1 Vet.App. 180 (1991). He also maintains that there is a need for a current or recent comprehensive examination to determine the true nature and extent of disability due to hyperkeratosis as required by Littke v. Derwinski, 1 Vet.App. 90 (1991). VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1992). The Court of Veterans Appeals has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examinations. Littke v. Derwinski. The accredited representative has raised the issue of the adequacy of the most recent VA compensation examination for the veteran's varicose veins. Indeed, the examiner did not fully comply with the Board's previous remand to describe the size and location of varicose veins and to perform specialized studies. Further, although the Board is not making a determination at this point as to whether clear and unmistakable error was made in the RO's failure to separately rate hyperkeratosis of both feet and failure to award service connection for varicose veins of the left leg, it does appear in light of Fugere v. Derwinski, the veteran's claim for varicose veins should be reviewed in light of M21-1. Finally, the issue of entitlement to a total rating based upon individual unemployability cannot be adjudicated prior to a resolution of the aforementioned issues since they are all inextricably intertwined to the issue presently at bar. Based on the foregoing, the Board is under the opinion that additional assistance is required. The case is REMANDED to the RO for the following: 1. The veteran should be afforded another special VA vascular examination to determine the current nature and extent of disability resulting from his varicose veins. Any indicated studies, including Trendelenburg's test, Doppler studies, venogram, or ultrasound should be made. A detailed description of all findings should be set forth, including any sacculation, distortion, ulceration, edema, and the location and size of any and all varicose veins. The claims folder should be made available to the examiner prior to the examination of the veteran, if possible.. 2. The RO should review the veteran's claim as to clear and unmistakable error in the March 16, 1982, rating decision and the RO's failure to separately rate hyperkeratosis of both feet. 3. The RO should review the veteran's claim as to clear and unmistakable error as to the RO's failure to apply M21-1, Part VI, para. 7.21(a) (formerly M21-1, para. 50.21(a)) for service connection for varicose veins of the left leg. 4. If the RO grants service connection for varicose veins of the left leg and/or hyperkeratosis of both feet (separately rated) based upon clear and unmistakable error, following the rating for these disabilities and the rating for varicose veins of the veteran's right leg, the RO should again address the issue of entitlement to a total rating based upon individual unemployability. Following completion of these actions, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, the veteran and his representative should be provided with an appropriate supplemental statement of the case and the case should be returned to the Board for further appellate consideration. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * J. E. DAY (MEMBER TEMPORARILY ABSENT) SAMUEL W. WARNER *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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. 57 Fed. Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).