Citation Nr: 1323904 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-24 339A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 20 percent for arthritis and gout of multiple joints, including the feet, knees, heels, ankle, and elbows. REPRESENTATION Appellant represented by: Robert Chisholm, Esq. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran served on active duty from August 1955 to June 1959 and from June 1964 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a May 2012 decision, the Board denied the claim of entitlement to a disability rating in excess of 20 percent for arthritis and gout of multiple joints. The Veteran appealed the Board's decision on that issue, and in a January 2013 Order, the United States Court of Appeals for Veterans Claims (Court) granted the parties' Joint Motion for Partial Remand and remanded that portion of the decision The May 2012 Board decision also denied entitlement to service connection for a lumbar spine disability. The Court did not disturb the Board's decision to deny service connection for a lumbar spine disability. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran had a VA examination in February 2011. The VA examiner provided range of motion findings of the elbows, lumbar spine, knees and ankles. The VA examiner indicated that the loss of function due to flare-ups could not be determined without resorting to mere speculation. In the Joint Motion, the parties noted that the medical records show that the Veteran has experienced arthritic flare-ups of bilateral knee pain and flare-ups of the right foot. The Joint Motion noted that the February 2011 VA examiner did not address evidence of flare-ups. The parties cited Jones v. Shinseki, 23 Vet. App. 382 (2010), and agreed that the February 2011 VA medical opinion was inadequate for adjudication purposes because the examiner did not adequately explain the basis of her inability to render an opinion as to whether the Veteran experiences additional loss of function during flare-ups. The Joint Motion noted that the VA examiner's lack of rationale for the opinion leaves unclear the reason why the examiner could not give an opinion as to the extent that joint function is additionally limited during flare-ups. The parties noted that, under Jones, the VA examiner must provide a medical explanation of why he is unable to provide an opinion. The parties noted additionally that, for a VA examination to be adequate, the examiner must address whether there is functional loss attributable to pain during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The parties found that the VA examiner did not explain whether there is additional limitation of function during these periods. As such, this matter must be remanded for a new examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to ascertain the severity of arthritis of multiple joints with gout. The claims file should be provided for the VA examiner's review in conjunction with the examination, and the examination report should indicate that the claims file was reviewed. All necessary studies should be conducted. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected arthritis of multiple joints and gout, including the feet, knees, heels, ankles, and elbows. 2. The VA examiner should provide range of motion findings, in degrees, for the feet/ heels, knees, ankles, and elbows. 3. The VA examiner should indicate whether the feet/ heels, knees, ankles and elbows exhibit weakened movement, excess fatigability, or incoordination. The examiner should describe in terms of degrees the additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The VA examiner should indicate whether pain significantly limits functional ability of the feet/heels, knees, ankles and elbows during flare-ups. If there is functional loss due to pain during flare-ups, the examiner should describe the additional functional limitation attributable to pain during flare-ups. The VA examiner should state whether the Veteran's gout is manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings or by incapacitating exacerbations occurring 3 or more times per year. The VA examiner should state whether the Veteran's service-connected arthritis of multiple joints and gout renders him unable to secure and follow a substantially gainful occupation. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner must provide an explanation for the basis of that opinion. See Jones, supra. 4. Thereafter, the RO should re-adjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and the representative should be provided with a supplemental statement of the case (SSOC) afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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). 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). _________________________________________________ M. TENNER Acting 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).