Citation Nr: 1332018 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-13 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral ankle and foot disability, to include gout. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter came to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified at a hearing before an RO Decision Review Officer (DRO) in August 2008; a transcript is of record. This matter was remanded in April 2010, December 2010, February 2013, and June 2013 for additional development. Unfortunately, another remand is required. 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 A Remand confers on the Veteran the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and as will be discussed below, the fact that the some of the development sought by the Board in this case has not been fully completed, another remand is now unfortunately required. 38 C.F.R. § 19.9. The Veteran asserted in an April 2006 statement, VA Form 21-4138, in support of his claim that he received treatment for his ankles and knees at Ft. Polk, Louisiana, in 1964. A February 1964 entry in the service treatment records note sore joints in leg, and the examiner opined the Veteran could use some arch supports. There is no indication that an examination was conducted of the affected joint(s). The entry also notes the Veteran was to go to the dispensary the next morning if his symptoms worsened, and an analgesic balm was recommended. There are no other relevant entries in the service treatment records, but apparently the Veteran was placed on Profile for unstated reasons, in as much as a March 1964 Physical Profile notes he was returned to full duty, effective early March 1964. The only post-induction physical examination of record is a March 1965 Report of Medical Examination for Flight Physical that indicates normal lower extremities. He denied any relevant complaints on his March 1965 Report of Medical History. At an August 2010 VA examination, the Veteran reported in-service treatment for sore ankles. The examiner noted the earliest documents of record were VA records of October 2002 that noted a long-term history of gout. He reported current symptoms of ankle pain. On physical examination of the bilateral ankles, they appeared anatomically normal, with the exception of some peripheral vascular disease and swelling around the ankles. The assessment was gout, and the examiner opined that the symptoms associated with the ankles and gout were not due to service. Degenerative joint disease associated with foot pain was shown but the examiner did not provide an etiological opinion as to that diagnosis. In the February 2013 Remand, the above opinion was deemed inadequate because the examiner did not fully consider all medical and lay evidence of record in rendering an opinion with respect to the etiology of his claimed disabilities. In July 2013, the Veteran underwent another VA examination. The examiner stated that the Veteran does not have radiographic changes of the feet and ankle that satisfy the standard changes that occur with gout. The examiner commented that Allopurinol is used for treating gout caused by excessive levels of uric acid in the blood (hyperuricemia). With regard to specific examination of the feet, the examiner diagnosed degenerative joints right foot MTP and DIP. With regard to specific examination of the ankles, the examiner diagnosed senescence age related change of the ankle normal mortise with no gout found. The VA examiner, in formulating his opinion, failed to address whether the Veteran's prescribed medication prevents gout from being symptomatic in either joint, and whether it is at least as likely as not that diagnosed degenerative changes in the ankle and feet are related to the Veteran's active service. The examiner's comments and opinion mainly refers to gout. Moreover, with regard to the x-ray examination of the ankles, the radiologist's impression was scattered degenerative changes bilaterally, and a stable .9 x 1.1 centimeter subchondral cystic lesion at the right distal medial tibia. The radiologist noted there was questionable involvement of the articular surface and that while a simple cyst was favored, further evaluation by MRI should be considered for definitive characterization. Thus, initially, the Veteran should be scheduled for an MRI of his ankles to address the radiologist's notation of questionable involvement of the articular surface. Thereafter, the claims folder should be returned to the July 2013 VA examiner for an addendum opinion as to whether the Veteran's prescribed medication prevents gout from being symptomatic in either joint, and the etiology of his current disabilities. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an MRI of his ankles and associate the report and the radiologist's impressions with the claims folder. 2. AFTER COMPLETION OF THE ABOVE, return the claims folder, including this remand, to the July 2013 VA examiner for an opinion as to the following: (a) Please state whether the Veteran's prescribed medication prevents gout from being symptomatic in either joint. (b) Please state whether it is at least as likely as not (a 50 percent probability or more) that diagnosed degenerative changes of the feet are due to the Veteran's active service. (c) Please state whether it is at least as likely as not (a 50 percent probability or more) that diagnosed degenerative changes of the ankles are due to the Veteran's active service. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. If the July 2013 VA examiner is unavailable, please refer the case to another physician with appropriate expertise for the requested opinion, and another VA examination should be scheduled if deemed necessary. 3. After completion of the above, the AMC/RO should readjudicate entitlement to service connection for a bilateral ankle and foot disability, to include gout. If the benefit is not granted in full, the Veteran and his representative should be provided with a supplemental statement of the case. The Veteran and his representative have 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. 2012). _________________________________________________ ERIC S. LEBOFF 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).