Citation Nr: 1806704 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-27 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial increased rating for gout of the left great toe, currently 10 percent disabling. 2. Entitlement to an initial increased rating for gout of the right great toe, currently 10 percent disabling. 3. Entitlement to an initial increased rating for gout of the left knee, currently 10 percent disabling. 4. Entitlement to an initial increased rating for gout of the right knee, currently 10 percent disabling. 5. Entitlement to an initial increased rating for a thoracolumbar spine disability, currently 10 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to June 1972, and from December 2001 to December 2008; in between those periods he was in the Army National Guard and had various periods of inactive and active duty for training. These matters came to the Board of Veterans' Appeals (Board) from April and August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in, a statement of the case was issued in, and a substantive appeal was received in . The Veteran testified before the undersigned at a June 2015 Board hearing; the transcript is of record. These matters were remanded in November 2015. In a March 2017 rating decision, service connection was established for right hip arthritis, with a 10 percent rating assigned effective August 14, 2009; a temporary total rating assigned effective May 18, 2015 to June 30, 2016; and, a 30 percent rating was assigned, effective July 1, 2016. The grant of service connection for this condition constituted a full award of the benefit sought on appeal as to the issue of entitlement to service connection for a right hip disability. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). To date, neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of effective date or compensation level within the applicable time period. Thus, these issues are not currently in appellate status. Id. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In Correia v. McDonald, 28 Vet. App. 158 (2016), it was held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Such is necessary especially in light of the fact that the Veteran complained of pain with weight bearing. 03/23/2016 C&P Exam (knees & lumbar spine) at 2. The examination provided on remand should comply with the requirements of Correia to the fullest extent possible. Moreover, in the prior remand, the Board instructed that the examiner describe the extent of additional limitation of motion due to flare-ups. The March 2016 examination acknowledged the Veteran's reports of flare-ups with pain, lack of endurance, and incoordination, but the examiner was unable to describe in terms of range of motion noting that this would be speculative. On remand, the examiner should be asked to provide further comment on additional limitation of motion due to flare-ups. The Board also acknowledges that the Veteran underwent July 2017 left total knee arthroplasty, thus an examination to assess the current severity of his disability is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an orthopedic examination with an examiner with appropriate expertise to assess the severity of his gout, bilateral great toes; gout, bilateral knees; and, degenerative disc disease of the thoracic spine. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the toes, knees, and spine should include range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. With regard to the knees, the examiner should also report whether there is instability or subluxation and express an opinion as to the severity of such instability or subluxation. The examiner should also describe all neurologic manifestations, to include, but not limited to bowel or bladder impairment. The examiner should also provide an opinion concerning how the lumbar spine disability affects his functioning and activities. The examiner should describe the types of limitations he would experience as a result of his gout, bilateral great toes; gout, bilateral knees; and, lumbar spine disability. The examiner must provide a comprehensive rationale for the opinions. 2. After completion of the above, review the relevant evidence of record and readjudicate the increased rating issues. If the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).