Citation Nr: 21061951 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-47 930 DATE: October 5, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left Achilles tendinopathy with forefoot callouses is remanded. Entitlement to a rating in excess of 10 percent for right Achilles tendinopathy with forefoot callouses is remanded. Entitlement to service connection for gout is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to April 1970 and from January 1971 to September 1979. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A July 2019 Board decision granted service connection for Achilles tendinopathy with bilateral forefoot callouses secondary to diabetes mellitus and remanded the issues on appeal for further development. The Board notes that two 10 percent ratings (less than the maximum available benefit) have been granted for the Veteran's bilateral Achilles tendinopathy with forefoot callouses during the pendency of this appeal. Because higher ratings for this disability are assignable during the relevant time period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 10 percent for left Achilles tendinopathy with forefoot callouses. 2. Entitlement to a rating in excess of 10 percent for right Achilles tendinopathy with forefoot callouses. A January 2020 VA examination conducted a range of motion examination of the Veteran's ankles. The examiner found that flare ups of the left ankle disability resulted in dorsiflexion between 0 and 7 degrees, and plantar flexion between 0 and 35 degrees. However, the examiner did not note the point that pain began in any of the range of motion testing. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. Upon remand, the examiner should note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. As the January 2020 examiner did not provide the requested information regarding pain, remand is required to obtain an accurate picture of the Veteran's level of functional impairment. 3. Entitlement to service connection for gout. The July 2019 BVA decision requested a medical opinion regarding whether the Veteran's gout was aggravated by the medications he takes for his service-connected disabilities. A January 2020 VA examination concluded that, "if the gout was alleged to be caused by the diuretic treatment for hypertension (which did not occur during the time of service), then the gout did not incur or was not caused during service." This statement only addresses direct causation by the Veteran's hypertension treatment and does not indicate whether his gout was worsened by that treatment. There is also no discussion as to the other service-connected disabilities or their medication. As the examiner did not address the question of whether the Veteran's gout was aggravated by his service-connected disabilities, the opinion is inadequate and remand for a new examination is required. See El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has submitted medical literature suggesting a link between gout and obesity. His representative also submitted a September 2020 statement in which he argues that the Veteran's obesity may have been caused by his service-connected musculoskeletal disabilities, which in turn caused his gout. The Board finds that this raises the question of whether obesity is an intermediate step between the Veteran's service-connected disabilities and his gout. It is noted that although service connection is not allowed for obesity on its own, obesity could act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The January 2020 VA examination did not include any discussion as to this matter and a new opinion is therefore needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his bilateral Achilles tendinopathy with forefoot callouses. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all ankle pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Obtain a medical opinion from a different provider than the one who wrote the January 2020 opinion regarding the etiology of the Veteran's gout. An in-person examination is not required unless the examiner deems it to be necessary. The provider should review the file and provide a complete rational for all opinions expressed. The provider should provide the following opinions: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gout is related to active service. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gout was caused or aggravated by his service-connected disabilities, to include their medication and treatment. c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities caused the Veteran to become obese. d) If the provider finds that the Veteran's service-connected disabilities caused his obesity, whether his obesity was a substantial factor in causing his gout. e) If the provider finds that the Veteran's obesity was a substantial factor in causing his gout, whether his gout would not have occurred but for the obesity. In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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. ยง 20.1303.