Citation Nr: 1120422	
Decision Date: 05/25/11    Archive Date: 06/06/11

DOCKET NO.  06-32 295	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for gouty arthritis.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Snyder, Counsel

INTRODUCTION

The Veteran had active service from January 1966 to May 1969.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

In January 2010, the Board remanded this issue, in part, to schedule the Veteran for an examination and obtain an opinion as to whether it was at least as likely as not that the Veteran's gouty arthritis was caused or aggravated by the service-connected foot disability.  Although the record indicates that an examination was conducted, the aforementioned opinion was not provided.  Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Thus, the claim must be remanded for compliance with the January 2010 remand instruction.  

Accordingly, the case is REMANDED for the following action:

1.  Forward the Veteran's claims folder to the examiner who conducted the May 2010 VA examination (or a suitable substitute if this individual is unavailable) for an addendum.  The examiner is requested to review the claims folder in order to render an opinion as to whether it is at least as likely as not (probability of fifty percent or more) that the Veteran's gouty arthritis was caused or aggravated (i.e. permanently worsened) by his service-connected impetigo of the feet.  A rationale for any opinion offered is requested.  

The examiner is informed that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. 

2.  Thereafter, readjudicate the appellant's claim.  If the benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  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. 2010).



_________________________________________________
M. E. LARKIN
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) (2010).