Citation Nr: 21002016 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 19-16 062 DATE: January 12, 2021 REMANDED Entitlement to service connection for gout of the right foot, to include the right great toe, is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right great toe is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1985 to May 1989 and from August 1989 to May 2006. In a September 2019 Board decision, the Board denied the Veteran’s appeal for a rating in excess of 10 percent for degenerative arthritis of the right great toe, for a compensable rating for residuals of a right third metatarsal fracture, and for entitlement to service connection for right foot gout. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court), and in September 2020 the Court granted a joint motion for partial remand (JMPR) that vacated the Board’s decision to the extent that it denied entitlement to a rating in excess of 10 percent for degenerative arthritis of the right great toe and entitlement to service connection for right foot gout. The issues are remanded in accordance with the terms of the JMPR. 1. Entitlement to service connection for gout of the right foot, to include the right great toe, is remanded. Remand is required to obtain a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4). Here, in an October 2002 periodic examination report of medical history, the Veteran indicated he experiences arthritis, rheumatism or bursitis. On January 2006 report of medical history upon separation, the Veteran indicated that he did not experience foot trouble; however, in the explanation, the Veteran noted that he had a broken right foot in 1986. The Veteran also explained that he developed swollen joints at Fort Drum. On the August 2015 notice of disagreement, the Veteran stated he had this disorder during active service in 1996 and has experienced symptoms since service. He stated that he experiences symptoms on a daily basis. On remand, an examination should be scheduled and opinion obtained addressing the nature and etiology of the Veteran’s claimed gout. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right great toe is remanded. Remand is required to obtain a VA examination. In the March 2019 and June 2015 VA foot examinations, the examiner did not comment or differentiate between the symptoms of the Veteran’s degenerative arthritis of the right great toe and the arthritic gout in the right great toe. Therefore, new examination is required to determine the current severity of the Veteran’s degenerative arthritis of the right great toe, and to the extent possible distinguish symptoms between different disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to assess the nature and etiology of gout of the right foot. The examiner must review the claims file and take a history from the Veteran as to the progression of his claimed disability. The examiner is asked to provide responses to the following: a) Does the Veteran have a current right foot gout disability that at least as likely as not (50 percent or greater probability) had onset in, or is otherwise related to service, including October 2002 report of arthritis and January 2006 reports of swollen joints at Fort Drum? b) Notwithstanding the above, does the Veteran have a current right foot gout disability that is at least as likely as not caused or aggravated by his service-connected degenerative arthritis of the right great toe? In providing the requested opinions, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? All opinions should be supported by a medical explanation or rationale. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative arthritis of the right great toe. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should differentiate symptoms associated with the Veteran’s arthritis disability and gout. If symptoms cannot be distinguished, the examiner should indicate as much in the report. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 3. Then, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.