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