Citation Nr: 20021582 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 05-31 516 DATE: March 31, 2020 REMANDED Entitlement to an initial disability rating in excess of 20 percent for gout is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1988 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2004 rating decision. The Board notes that the Veteran’s claim for an increased rating for service-connected gout was remanded for further development in April 2008, November 2013, and March 2017. In March 2017, the Board also assumed jurisdiction over the issue of a TDIU rating and remanded it as inextricably intertwined with the Veteran’s claim for an increased rating for gout. Concerning the Veteran’s claim of service connection for osteoarthritis of the right knee, he requested a video-conference hearing in his May 2016 VA Form 9, Appeal to the Board of Veterans’ Appeals. The Veteran has not been afforded a video-conference hearing addressing his claim for service connection, and as such, the Board will not address his claim for service connection at this time. The Board finds there has not been substantial compliance with the Board’s March 2017 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Therefore, unfortunately, the Veteran’s claim for an increased rating and entitlement to a TDIU rating must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these issues, so that the Veteran is afforded every possible consideration. 1. Entitlement to an initial disability rating in excess of 20 percent for gout is remanded. The Veteran’s claim for an increased rating for gout was remanded by the Board in March 2017, in part, to obtain a new VA examination to comply with the United States Court of Appeals for Veterans Claims (the Court) holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Subsequently, the Veteran was afforded a March 2018 Non-degenerative Arthritis (including Inflammatory, Autoimmune, Crystalline and Infectious Arthritis) and Dysbaric Osteonecrosis Disability Benefits Questionnaire. For the reasons discussed below, the Board finds that the March 2018 examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As noted in the Board’s March 2017 remand, the Court 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 weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint, or an explanation as to why such testing is not warranted or not possible. See Correia, 28 Vet. App. at 158. The March 2018 examination report provides that the Veteran has left ankle limitation attributable to the arthritis condition. However, the examination report does not indicate that joint testing required under Correia was performed. Id. Therefore, on remand, the Veteran must be afforded a new examination that complies with Correia. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Given that final adjudication of the Veteran’s claim for an increased rating for gout could result in additional evidence speaking to the Veteran’s employability, the issue of entitlement to a TDIU rating is inextricably intertwined with the claim for an increased rating being remanded herein, and the issues should be considered together. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the issue of a TDIU rating must be remanded as well. Additionally, under applicable VA statute, “[t]he Secretary shall not assign to any veteran a [TDIU] of the [V]eteran resulting from a service-connected disability during any period during which the [V]eteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.” 38 U.S.C. § 5313(c); see also 38 C.F.R. § 3.341(b). This phrase has been interpreted to prohibit adjudication of a TDIU rating if that TDIU rating would begin during a period in which a veteran is incarcerated for conviction of a felony. See VAOPGCPREC 13-97 (Apr. 7, 1997). It appears that the Veteran’s claims folder demonstrates that he is currently incarcerated and has been incarcerated in the past. However, the record does not show that the Agency of Original Jurisdiction has verified the Veteran’s dates of incarceration. Therefore, the Board finds that a remand is required for the Agency of Original Jurisdiction to verify the Veteran’s dates of incarceration. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present. 2. Undertake all necessary development to verify the Veteran’s dates of incarceration. 3. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected gout. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s gout under the rating criteria. (Continued on the next page)   (b.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of each joint impacted by residuals of gout. (c.) If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.