Citation Nr: 1318902 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-42 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation higher than 20 percent for polyarticular gout. 2. Entitlement to an effective date prior to December 27, 2005 for the grant of service connection for polyarticular gout, including on the basis of Clear and Unmistakable Error (CUE) in a May 1999 RO rating decision. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1980; from October 1981 to June 1997; and from May 2007 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection and a 20 percent evaluation for polyarticular gout, effective December 27, 2005. The Veteran appealed the assigned initial disability rating and effective date of service connection. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran last underwent a VA examination for polyarticular gout in January 2008, and he has since argued in substance that his disorder has worsened. A new examination is now warranted to provide for contemporaneous findings. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran has also alleged CUE in a May 1999 RO decision which denied service connection for gout of multiple joint systems. He argues that the decision should be "reversed" based on failure to properly evaluate the evidence, thereby permitting an effective date of service connection from the original date of claim in 1997 (rather than his current effective date, which is based the date of his reopened claim). The Veteran's representative more directly alleges CUE, suggesting misapplication of the provisions of 38 C.F.R. § 3.303(b) (in part, regarding adjudication of claims for service connection for chronic diseases shown in service). The Board thereby construes a CUE argument. See generally, Norris v. West, 12 Vet. App. 413, 417 (1999) ("Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims."), citing E.F. v. Derwinski, 1 Vet. App. 342, 326 (1991). The revised earlier effective date claim including contention of CUE must be remanded to the RO/AMC to consider the Veteran's contentions in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, preferably with a rheumatologist or a physician similarly qualified to respond to the inquiry below, to determine the current severity of his service-connected polyarticular gout. The claims folder must be provided to and reviewed by the examiner in conjunction with the requested VA examination. All tests and studies must be performed. The VA examiner must indicate all present symptoms and manifestations attributable to the Veteran's service-connected polyarticular gout, in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5002 for rheumatoid arthritis, including, as appropriate, under the criteria for when there is an active process. The VA examiner must identify all affected joint regions; and report complete range of motion findings for the affected joint(s); whether pain or weakness significantly limits functional ability during flare-ups or when the measured area(s) is/are used repeatedly over a period of time. The examiner must also be asked to determine whether the affected joint region(s) exhibits weakened movement, excess fatigability or incoordination. These determinations must be expressed in terms of additional range of motion lost due to any weakened movement, excess fatigability or incoordination. 2. The RO/AMC must then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC must readjudicate these claims on appeal based upon all additional evidence received, including the claim for an earlier effective date for service connection for polyarticular gout in view of the theory of CUE raised by the Veteran and his representative. If the benefits sought on appeal are not granted, the Veteran and his representative must be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran 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 his claim and his petition for revision of the rating decision. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of the claim for an increased rating for polyarticular gout. 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. 2012). _________________________________________________ VITO A. CLEMENTI 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).