Citation Nr: 0801591 Decision Date: 01/15/08 Archive Date: 01/29/08 DOCKET NO. 04-09 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an increased (compensable) rating for gout and hyperuricemia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran retired from the military in December 1979 with over 20 years of active duty service. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Columbia, South Carolina( ), Department of Veterans Affairs (VA) Regional Office (RO). Thereafter, the veteran's file was transferred to the RO in Winston-Salem, North Carolina. This matter was before the Board in September 2005, and was then remanded for further development. FINDING OF FACT The veteran's gout and hyperuricemia does not result in one or more exacerbations in a 12 month period or in objectively confirmed swelling, muscle spasm, or any evidence of painful motion. CONCLUSION OF LAW The criteria for an initial compensable evaluation for gout and hyperuricemia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5002, 5017 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119-20 (2004). See, too, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the veteran was provided notice of the VCAA in March 2003, prior to the initial adjudication of his claim in the May 2003 rating decision at issue. The VCAA letter summarized the evidence needed to substantiate the claim and VA's duty to assist. It also specified the evidence the veteran was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letter clearly satisfies the first three "elements" of the notice requirement. In addition, the March 2003 letter informed the veteran: "It's your responsibility to make sure that we receive all requested records that aren't in the possession of a Federal department or agency." (Emphasis in original). This satisfies the fourth element, in that it informed the veteran that he could submit any and all evidence which was pertinent to his claim, not merely that requested by the RO. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include mention that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In the present appeal, the veteran was provided notice of what type of information and evidence was needed to substantiate his increased rating claim, but he was not provided notice of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. Despite the inadequate notice provided him on this element, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, i.e., the RO, the Board must consider whether the veteran has been prejudiced thereby). Concerning this, since the Board will conclude below that the preponderance of the evidence is against the veteran's claim for increased rating, any question about the appropriate disability rating and effective date to be assigned is rendered moot. The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes VA medical records and reports of VA examinations. The veteran has not indicated he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained. The veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2007). Pertinent Law and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2007). The RO has evaluated the veteran's gout and hyperuricemia under 38 C.F.R. § 4.71a, DC 5017, which directs VA to rate gout under the criteria for rheumatoid arthritis. Under 38 C.F.R. § 4.71a, DC 5002 rheumatoid arthritis is assigned various rating based on whether the arthritis is an active process or manifested by chronic residuals. For arthritis as an active process, a 100 percent rating is assigned for constitutional manifestations associated with active joint involvement, totally incapacitating. Id. A 60 percent rating is assigned where manifestations less than commensurate with criteria for a 100 percent but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods. Id. A 40 percent rating is assigned with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. Id. A 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis. Id. For arthritis as chronic residuals, DC 5002 permits evaluation based on limitation of motion or ankylosis, favorable or unfavorable, of specific joints affected consistent with applicable diagnostic codes. Where however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5002. Id. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. A Note to the Code provides that the rating for active process cannot be combined with that for residuals based on limitation of motion or ankylosis; the higher rating is to be assigned. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Analysis In a May 1977 rating decision, the RO granted service connection for gout and hyperuricemia, evaluated as noncompensably disabling. The veteran filed an increased rating claim in February 2003. On VA examination in April 2003, the veteran reported a history of gout which always took the form of podagra, i.e., pain in the right first metacarpal phalangeal (MP) joint. He indicated that the last time he had an attack was in the late 1970s after he had been placed on Allopurinol. He denied any episodes of swelling, redness or tenderness of the first MP joint. Physical examination of the first MP joints of the feet was normal. There was no redness, swelling or tenderness. There was full range of motion with no crepitus. The diagnosis was gout, quiescent, under therapy. The veteran was examined by VA again in November 2005. Again, he denied any real episodes of podagra since being placed on Allopurinol many years ago. He indicated that he had not had any flare-ups of gout in the past 30 plus years. Physical examination of the foot showed it to be normal in appearance. There was no redness or swelling noted on the right first MP joint although there was very slight tenderness to very hard palpation over the dorsal surface of the first MP joint. There was full range of motion of the first MP joint and the veteran was able to move all of the toes. The diagnosis was gout, quiescent at the present time, under therapy. The examiner commented there was some evidence of very mild anemia, but no evidence that it was related to gout. Based upon this evidence, the veteran's gout and hyperuricemia do not satisfy any of the criteria for a compensable rating. Initially, the evidence of record does not show that the veteran's condition to be productive of limitation of motion that has been objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Both the 2003 and 2005 VA examinations showed that physical examination of the right foot were normal with no evidence of swelling, muscle spasm or painful motion. In addition, there was no indication that the condition is productive of one or two exacerbations a year. On the contrary, the veteran denied having any flare- ups of gout in the past 30 years. As the veteran's gout does not satisfy any of the required criteria for a compensable rating, his claim must be denied. The Board has also taken into consideration the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, supra. The Court has held that where a diagnostic code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Such is the case with DCs 5017-5002. Accordingly, the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration in this case. For the reasons provided above, the preponderance of evidence is against the veteran's claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2007). ORDER Entitlement to an increased (compensable) rating for gout and hyperuricemia is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs