Citation Nr: 0812596 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-31 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial disability rating higher than 20 percent for gout. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from August 1988 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Wichita, Kansas. In his September 2005 substantive appeal (VA Form 9), the veteran stated that his service-connected gout prevented him from maintaining employment. The Board finds that this statement raises the issue of entitlement to a total disability rating based on individual unemployability (TDIU). This claim is referred to the RO for appropriate action. REMAND The Board finds that a VA examination is necessary to evaluate the current level of severity of the veteran's service-connected gout. VA outpatient treatment records dated from March 2003 to June 2005 reflect that he regularly sought treatment for gouty arthritis in his ankles, feet, and knees. However, none of the medical evidence of record, including the report of an October 2003 VA examination, adequately addresses the pertinent rating criteria. It is unclear from the record whether the veteran's gout is an active process or whether he experiences chronic residuals. It also is unclear whether his gout is manifested by constitutional symptomatology, is productive of impairment of health, and to what degree, if any, gout affects range of motion in the affected joints. In addition, the most recent VA outpatient treatment records associated with the veteran's claims file are dated in June 2005. Since more recent VA outpatient treatment records may contain information concerning the veteran's current level of disability, efforts should be made to obtain them. 38 C.F.R. § 3.159(c)(2) (2007). Finally, the Board notes that the veteran is appealing the initial rating of a disability following an award of service connection. He has not been provided with the notice required under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007) with respect to this downstream element of his original service connection claim. Therefore, while this case is in remand status, the RO or the Appeals Management Center (AMC), in Washington, D.C., should ensure that all notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) is provided. Accordingly, this case is REMANDED to the RO or the Center AMC for the following actions: 1. The veteran should be provided all notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include notice in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and notice that he should submit any pertinent evidence in his possession. 2. The AMC or RO should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran, including VA outpatient treatment records for the period since June 2005. If it is unable to obtain any such evidence, it should so inform the veteran and his representative and request them to provide the outstanding evidence. 3. When all indicated record development has been completed, the veteran should be afforded an examination by a physician with appropriate expertise to determine the current degree of severity of his service-connected gout. The claims folder must be made available to and reviewed by the examiner. The examiner should indicate whether the veteran's gout currently is an active process productive of definite impairment of health objectively supported by examination findings and whether it results in incapacitating exacerbations, including the number of times per year that the incapacitating exacerbations occur. The examiner should identify which joints are involved in the disease process. If the veteran's gout is chronic, the physician should describe any residuals and resulting functional impairment, such as limitation of motion or ankylosis (favorable or unfavorable), functional loss due to pain, weakness, fatigability, incoordination, and any increased functional impairment on repeated use or during flare ups. The examiner should also provide an opinion concerning the impact of the disability on the veteran's ability to work. A complete rationale should be provided for all opinions expressed and conclusions reached. 4. The RO or the AMC also should undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the veteran's claim for a higher initial disability based on a de novo review of the record. If any benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).