Citation Nr: 0814582	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  06-06 169	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim for entitlement to service connection for a 
weak left second toe with spasms.

2.  Entitlement to an increased rating for residuals of a 
left knee injury currently rated as 20 percent disabling.

3.  Entitlement to an increased rating for gouty arthritis, 
left foot currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Johnson, Associate Counsel


INTRODUCTION

The veteran served on active duty from October 1975 to 
September 1978.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from an August 2005 decision rendered by the 
Phoenix, Arizona Regional Office (RO) of the Department of 
Veterans Affairs (VA), which denied an increased rating for a 
left knee disorder rated as 20 percent disabling and a left 
foot disorder currently rated as 10 percent disabling.  The 
RO also found that new and material evidence had not been 
received to reopen a previously denied claim for service 
connection for a weak left second toe with spasms.

The veteran testified before the undersigned Veterans Law 
Judge at a Travel Board hearing in January 2008.  A 
transcript of the hearing is of record.

The issues involving higher ratings for the residuals of a 
left knee injury and for gouty arthritis of the left foot are 
addressed in the REMAND portion of the decision below and are 
REMANDED to the RO via the Appeals Management Center (AMC), 
in Washington, DC.


FINDING OF FACT

On January 2008, prior to the promulgation of a decision in 
this appeal, the Board received notification from the 
appellant requesting withdrawal of her appeal, but only as it 
pertains to the claim of entitlement to service connection 
for the issue of weak left second toe with spasms.


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the 
appellant, as to the issue of a weak left second toe with 
spasms have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 
2002); 38 C.F.R. §§ 20.202, 20.204 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal 
which fails to allege specific error of fact or law in the 
determination being appealed.  A Substantive Appeal may be 
withdrawn in writing at any time before the Board promulgates 
a decision. 38 C.F.R. § 20.202 (2007).  Withdrawal may be 
made by the appellant or by his or her authorized 
representative. 38 C.F.R. § 20.204 (2007).  The appellant has 
withdrawn her appeal as it relates to entitlement to service 
connection for the issue of a weak left second toe with 
spasms.  Hence, there remain no allegations of errors of fact 
or law for appellate consideration as it regards these 
issues.  Accordingly, the Board does not have jurisdiction to 
review that issue and it is dismissed.

 
ORDER

The issue involving whether new and material evidence was 
received to reopen the claim for entitlement to service 
connection for a weak left second toe with spasms is 
dismissed.


REMAND

The veteran contends that her left knee disability has 
increased in severity and warrants a higher rating.  In the 
course of the veteran's January 2008 hearing before the 
undersigned, she testified that since her last VA examination 
in July 2005, she has undergone laparoscopic surgery on the 
service-connected knee.  This occurred in November 2005.  She 
also testified that her knee swells, is painful with limited 
motion, and causes her to fall due to instability.  Objective 
findings of arthritis, synovitis, and chondromalacia are also 
observed in recent outpatient treatment records.

In addition, the Board notes that the veteran's knee 
disability has only been rated under Diagnostic Code 5257 for 
instability of the knee.  Further consideration is warranted 
in light of VA General Counsel opinions indicating that a 
veteran who has arthritis and instability of the knee may, in 
certain circumstances, be rated separately under Diagnostic 
Codes 5003 and 5257, and that if a veteran has a disability 
rating under Diagnostic Code 5257 for instability of the 
knee, and there is also X- ray evidence of arthritis, a 
separate rating for arthritis could also be based on painful 
motion under 38 C.F.R. § 4.59.  See VAOPGCPREC 9-98; 
VAOPGCPREC 23-97.  Moreover, VA's General Counsel recently 
indicated that a veteran could receive separate ratings under 
Diagnostic Codes 5260 (leg, limitation of flexion) and 
Diagnostic Code 5261 (leg, limitation of extension) for 
disability of the same joint.  VAOPGCPREC 9-2004. 

Regarding the issue of gouty arthritis in the left foot, the 
veteran testified that her arthritis has increased in 
severity since the last examination in 2005.  She indicated 
that she has now has symptoms of spasms, swelling, numbness, 
flat feet and varicose veins all attributable to the gouty 
arthritis.  Treatment records appear to suggest that the 
arthritis now affects her left ankle joints in addition to 
multiple joints in the left foot.  The veteran is also shown 
to use compression stockings to help alleviate swelling in 
her lower extremities and feet.  The Board is aware that the 
nature of the veteran's disability is such that it may 
progressively worsen over time and may require frequent 
treatment.  Accordingly, the Board finds in light of the 
veteran's recent complaints and noting that the last 
examination was conducted over two years ago, a new VA 
examination is warranted.  See Green v. Derwinski, 1 Vet. 
App. 121, 124 (1991).  



Accordingly, the case is REMANDED for the following action:

1.  The RO should arrange for the veteran 
to undergo a VA orthopedic examination of 
the left knee.  The claims file must be 
made available to the VA examiner, and the 
examiner should review the file prior to 
the examination and indicate compliance.  
All appropriate tests and studies, 
including X-rays and range of motion 
studies of the left knee, reported in 
degrees, should be accomplished.  All 
findings should be made available to the 
primary physician prior to the completion 
of this report, and all clinical findings 
should be reported in detail.

a. The examiner should identify all 
impairments affecting the left knee.  The 
examiner should also specifically indicate 
whether arthritis is present, and whether 
there is recurrent subluxation or lateral 
instability of the knee (and, if so, 
whether such is best characterized as 
"slight", "moderate," or "severe").  
The examiner should also indicate whether 
there is ankylosis, dislocation or removal 
of cartilage, impairment of the tibia or 
fibula, or genu recurvatum. 

b. The examiner should also render 
specific findings as to whether, during 
the examination, there is objective 
evidence of pain on motion, weakness, 
excess fatigability, and/or incoordination 
associated with the service-connected left 
knee disability.  If pain on motion is 
observed, the examiner should indicate the 
point at which pain begins.  The examining 
physician should indicate whether, and to 
what extent, the veteran experiences 
likely functional loss due to pain and/or 
any of the other symptoms noted above 
during flare-ups and/or with repeated use; 
to the extent possible, the examiner 
should express any such additional 
functional loss in terms of additional 
degrees of limited motion.

2.  The veteran should be scheduled for an 
examination by a physician with 
appropriate expertise to determine the 
nature and severity of the veteran's gouty 
arthritis.  The examiner is to address the 
following matters:

a. Please indicate whether the veteran's 
disease process is active.  

b. List all joints affected by the 
disease; and provide complete range of 
motion studies for each affected joint.  
Please state whether there would be 
additional loss of motion associated with 
the specified joint due to pain, weakness, 
weakened movement, excess fatigability and 
incoordination.  

c.  If active joint disease is shown, 
please identify all associated 
constitutional manifestations, to include 
the presence or absence of: fever, weight 
loss, anemia, emaciation, muscular and 
bone atrophy, skin complications, 
gastrointestinal symptoms, capillary 
stasis, imbalance in water metabolism, 
vascular changes, cardiac involvement, dry 
joints, low renal function, postural 
deformities, and low grade edema of the 
extremities.  

3.  Once all necessary development has 
been completed, the RO should review any 
additional evidence and readjudicate the 
issue, under all appropriate statutory and 
regulatory provisions and legal theories, 
including the opinions of VA's General 
Counsel discussed herein.  If any benefit 
sought on appeal remains denied, the 
veteran should be provided with a 
supplemental statement of the case (SSOC).

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the appellant until further notice.  
However, the Board takes this opportunity to advise the 
appellant that the conduct of the efforts as directed in this 
remand, as well as any other development deemed necessary, is 
needed for a comprehensive and correct adjudication of her 
claims.  Her cooperation in VA's efforts to develop her 
claims, including reporting for any scheduled VA examination, 
is both critical and appreciated.  The appellant is also 
advised that failure to report for any scheduled examination 
may result in the denial of a claim.  38 C.F.R. § 3.655.  

These claims 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).



______________________________________________
Dennis F. Chiappetta 
Veterans Law Judge, Board of Veterans' Appeals







 Department of Veterans Affairs