Citation Nr: 1307933 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 08-21 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an increased disability rating greater than 20 percent for hyperuricemia, asymptomatic with gout of the left ankle, right thumb, right knee, and right big toe (hereinafter "hyperuricemia with gout"). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1967 to June 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and provided to the Veteran by the Albuquerque, New Mexico RO, which is the Veteran's agency of original jurisdiction (AOJ). The March 2007 rating decision denied the Veteran's request for a compensable disability rating for hyperuricemia. Shortly before that issue was decided, the Veteran filed a claim to service connect gout. This claim was determined to be inextricably intertwined with his hyperuricemia claim, and, after the notice of disagreement (NOD) to the March 2007 rating decision was filed, the two issues were combined. A 20 percent disability rating was applied to the Veteran's hyperuricemia with gout in an August 2012 rating decision issued by the Albuquerque RO, however, the Veteran has not expressed satisfaction with that award and his appeal is still pending. AB v. Brown, 6 Vet.App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 The Veteran's service-connected hyperuricemia with gout is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5017-5002 (gout and rheumatoid arthritis). That is, pursuant to Diagnostic Code 5017, gout is to be rated under Diagnostic Code 5002, which applies to rheumatoid arthritis. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. As discussed above, he is seeking a higher rating. Under Diagnostic Code 5002, a 100 percent rating is warranted for rheumatoid arthritis (atrophic) as an active process with constitutional manifestations associated with active joint involvement, totally incapacitating. When less than the criteria for a 100 percent rating but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times per year or a lesser number over prolonged periods, a 60 percent rating may be assigned. With symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times per year, a 40 percent rating evaluation may be assigned. One or two exacerbations per year in a well-established diagnosis warrant a 20 percent rating. Alternatively, chronic residuals can be rated based on limitation of motion, with a 10 percent assigned for limited motion which is noncompensable under the appropriate rating codes for the joints. See 38 C.F.R. § 4.71a, Diagnostic Code 5002. For chronic residuals of rheumatoid arthritis such as limitation of motion or ankylosis, favorable or unfavorable, the disability is rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, and the ratings for active process will not be combined with the residual ratings for limitation of motion or ankylosis; rather, the higher evaluation should be assigned. See 38 C.F.R. § 4.71a, Diagnostic Code 5002. The Veteran attended a VA joints examination in May 2007, and VA examinations of the ankle, foot, hand and finger, and knee and lower leg in December 2011. Unfortunately, the examination reports are inadequate for rating purposes, and this matter must be remanded for an additional opinion. At the May 2007 VA examination, the Veteran was diagnosed with gouty arthritis. He had an initial gouty attack in December 2006, which affected his left ankle, right knee, right thumb, and right big toe. It was noted that he was taking medication to prevent further attacks and that he had no other flare ups, but he still felt pain in the left ankle, both knees, left wrist, and right fourth finger. Range of motion for all joints was described as normal, but no measurements were provided. It was not stated whether the Veteran's hyperuricemia with gout was considered an active process, or whether only residuals remained to be evaluated. See VA examination dated May 15, 2007. An endocrinology clinical note indicated that his gouty arthritis affects his left ankle, left thumb and one of the fingers on his left hand, both wrists, and both knees. See Endocrinology note dated December 14, 2007. The December 2011 VA ankle examination diagnosed gout in the Veteran's right ankle only, however, both ankles were shown to have decreased range of motion. It was also noted that the Veteran's right ankle was showing degenerative changes of the mortise, and the left ankle had degenerative or traumatic arthritis. Because his left ankle had been affected by gout in the past, it is unclear whether the VA examiner accidentally checked "right" instead of "left," or if the Veteran's right ankle has become affected by gout since his May 2007 VA examination. Also, the December 2011 ankle examination report does not comment as to whether the arthritis and limited motion in the left ankle, which was not gouty according to the report, could be attributed to the Veteran's hyperuricemia with gout. Similarly, the December 2011 VA knee examination only diagnosed the Veteran's left knee as being affected by gout, but diagnosed both knees with post surgical hypoparathyroidism. Both knees showed decreased range of motion, but the report does not indicate whether that was attributed to hyperuricemia with gout, or hypoparathyroidism, for which the Veteran is also service connected. The December 2011 VA foot examination did not diagnose gout in either of the Veteran's feet. However, his right great toe was diagnosed as a hammer toe, and he was also found to have bilateral weak foot. No discussion was made as to whether these diagnoses were related to the Veteran's hyperuricemia with gout. The December 2011 VA hand examination diagnosed gout in both hands, and adequately described the symptoms of each. The report indicated that X-rays of the hands had been ordered, but X-ray reports have not been included in the file. Further, other evidence shows that the Veteran's wrists were found to be affected by gout during the pendency of this claim, however, no examination or discussion was made of these joints and whether either wrist is symptomatic due to hyperuricemia with gout. None of the December 2011 VA examinations discussed whether the Veteran's hyperuricemia with gout could be described as an active process, or whether only residuals remained. In that regard, no discussion was made of the number of exacerbations the Veteran had each year, and whether those were incapacitating, or whether the hyperuricemia with gout caused anemia or weight loss. All of these factors are taken into consideration when evaluating gout. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). Therefore, clarification of all symptoms attributable to hyperuricemia and gout must be obtained before full consideration can be given to the Veteran's disability rating. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for gout. After obtaining any appropriate authorizations for release of any private medical information, the RO/AMC must seek to obtain records from each private health care provider the Veteran identifies. Additionally, all relevant VA treatment records dated from October 2008 must be secured, including all X-ray reports, and specifically any X-ray reports of the hands mentioned in the December 2011 VA examination. 2. Upon completion of the foregoing, the RO/AMC must schedule the Veteran for a VA examination with an appropriate clinician (e.g., a rheumatologist) to assess the severity of the Veteran's hyperuricemia with gout. The examination should include any diagnostic testing or evaluation deemed necessary, including laboratory tests. A clear rationale for all opinions must be provided as well as a discussion of the facts and medical principles involved. The Veteran must be advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. The claims folders must be made available for review for the examination and the examination report must state whether such review was accomplished. After review of the claims folders, the examiner must determine how the Veteran's hyperuricemia with gout manifests, and clearly explain all of the Veteran's symptoms. The following issues must be specifically addressed: a. Does the Veteran's hyperuricemia with gout manifest as an active process? If so, how many incapacitating exacerbations does the Veteran have each year? Is it totally incapacitating? Do the combination of symptoms result in a definite or severe impairment of health? Does the Veteran have weight loss or anemia attributable to hyperuricemia with gout? b. If the symptoms of his hyperuricemia with gout are residuals of previous attacks, then the examiner is asked to: i. List each joint that is affected, including range of motion measurements and discussions of functional loss. Comment specifically on whether there are residuals in both knees, both ankles, both wrists, both hands, and both feet. ii. Indicate whether a decreased range of motion in the left ankle and/or degenerative or traumatic arthritis of the left ankle is related to hyperuricemia with gout. iii. Indicate whether any hammer toes are a result of hyperuricemia with gout. iv. Indicate whether bilateral weak foot is a result of hyperuricemia with gout. v. Indicate with specificity whether any symptoms manifested in the knees are a result of the Veteran's hyperuricemia with gout, or of hypoparathyroidism. 3. Following completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review the Veteran's entire record and readjudicate the Veteran's claim for an increased rating. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts 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). 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. 2012). _________________________________________________ JOHN Z. JONES 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) (2012).