Decision Date: 10/17/95				Archive Date: 
10/18/95 
DOCKET NO.  93-25 022	)	DATE 
	) 
	) 
 
On appeal from the 
Department of Veterans Affairs Regional Office in Fort 
Harrison, Montana 
 
 
THE ISSUE 
 
Entitlement to restoration of a 20 percent rating for gout, 
currently evaluated as noncompensably disabling. 
 
 
REPRESENTATION 
 
Appellant represented by:	The American Legion 
 
 
WITNESSES AT HEARING ON APPEAL 
 
Appellant, and spouse 
 
 
ATTORNEY FOR THE BOARD 
 
Constance C. Hickey, Associate Counsel 
INTRODUCTION 
 
The veteran had active service from September 1972 to August 
1975.  
 
The veteran had been assigned a 20 percent rating for gout 
effective from March 29, 1989.  This appeal to the Board of 
Veterans' Appeals (Board) arises from the January 1993 
rating decision of the Department of Veterans Affairs (VA) 
Regional Office (RO) in Fort Harrison, Montana which reduced 
to a noncompensable rating the evaluation of the veteran's 
gout.  The veteran had been advised of the proposed 
reduction and had furnished additional evidence.  The Board 
observes that the hearing officer has stated that, at his 
personal hearing the veteran initiated an additional claim 
for service connection for a disorder of both hands and both 
feet manifested by pain and tingling.  To the extent that 
the veteran's statements are construed to constitute such a 
claim, it has not been adjudicated by the RO, and is 
therefore not addressed herein, but is referred to the RO 
for appropriate consideration. 
 
 
CONTENTIONS OF APPELLANT ON APPEAL 
 
It is contended by and on behalf of the veteran that he is 
entitled to restoration of a 20 percent rating for gout.  
The veteran's representative has argued that the reduction 
in rating is based on one examination in violation of 38 
C.F.R. § 3.344 (1994).   
 
 
DECISION OF THE BOARD 
 
The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991), has reviewed and considered all of the 
evidence and material of record in the veteran's claims 
folder.  Based on our review of the relevant evidence in 
this matter, and for the following reasons and bases, it is 
the decision of the Board that the preponderance of the 
evidence is against the restoration of a 20 percent rating 
for gout.   
 
 
FINDING OF FACT 
 
The record reflects no medical evidence of acute gout since 
February 1990. 
 
 
CONCLUSION OF LAW 
 
Restoration of a 20 percent evaluation for gout is not 
warranted by the schedular and extraschedular criteria. 38 
U.S.C.A. §§  1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 
4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59 and Part 4, Codes 5002 
& NOTE, and 5017 (1994).   
 
 
REASONS AND BASES FOR FINDINGS AND CONCLUSION 
 
At the outset, the Board finds that the veteran has met his 
burden of submitting evidence sufficient to justify a belief 
by a fair and impartial individual that his claim is well-
grounded; that is, the claim is plausible.  Additionally, 
there is no indication that there are unobtained records 
which are available and which would aid a decision in this 
case.  Accordingly, we conclude that the record is complete 
and that there is no further duty to assist the veteran in 
developing the claim, as mandated by 38 U.S.C.A. § 5107(a).   
 
Factual Background 
 
Medical records indicate that when the veteran was seen at a 
service hospital in April and June 1976, his uric acid level 
was measured as 9.9, and 12.3, respectively.  The impression 
in June 1976 was hyperuricemia, probably secondary to 
Thiazide diuretic. 
 
Service connection is in effect for hypertension effective 
May 1985, evaluated as 10 percent disabling.   
 
Private medical records from the Great Falls Clinic indicate 
that the veteran's uric acid level was considered a little 
high in October 1982.  In February 1989 the veteran was seen 
at the clinic reporting a recent episode of acute pain and 
swelling in his left knee, reportedly improved after taking 
Naprosyn for three days.  He related a history of similar 
abrupt episodes of swelling and pain in his ankles, and 
generalized morning stiffness in his hands.  It was noted 
that hyperuricemia had been shown on a past chemistry 
profile.  Physical examination disclosed moderate effusion 
in the left knee which was nontender.  Passive range of 
motion was normal.  Subsequent arthrocentesis demonstrated 
uric acid crystals in the synovial fluid of the left knee.  
Steven Akre, M.D. expressed the opinion that it seemed 
extremely likely the veteran's recent ankle pain and 
swelling were due to the same cause.  Allopurinol was 
prescribed.   
 
Also of record is the statement of Thomas W. Rosebaum, M.D., 
dated in January 1990, which asserted that because of the 
veteran's need to take diuretics for hypertension treatment, 
he had symptomatic gout which required him to take 
Allopurinol.   
 
Service connection for gout was established by a June 1990 
Board decision as related to diuretics for treatment of 
hypertension, and was evaluated as 20 percent disabling, 
effective March 1989. 
 
On a July 1992 VA examination the veteran gave a history of 
gout.  It was noted that he did not describe any typical 
gouty attacks.  His knees were clinically normal. There was 
no evidence of effusion, redness, tenderness, crepitus, or 
ligamentous laxity.  Gait and station were normal.  
Examination of the feet disclosed no evidence of swelling in 
the ankles or first toe, metatarsal phalangeal joint, on 
either foot.  In addition there was no swelling or redness 
over the dorsum of the foot.  The examiner stated that there 
was no evidence of acute or chronic gout.  Uric acid 
measured 5.6, within a reference range of 2.7 -7.9.  The 
examiner commented that in his opinion it did not make 
medical sense for the veteran to take Thiazide diuretics, in 
view of his history of gout, when there were other options 
for hypertension treatment.  It was his opinion that the 
veteran's gout would disappear if Thiazide were 
discontinued.    
 
Received at the RO in September 1992, were medical records 
from the Great Falls Clinic dated in February 1990 through 
September 1992, which reflect monitoring of hypertension, 
and, continuous prescriptions for Dyazide and Allopurinol.  
In February 1990 the  veteran reported some aching of the 
knees, but no acute gout.  In January 1992 the veteran's 
uric acid level was 6.3, with a reference range of 3.9-8.9. 
 
By rating action of October 1992 the RO proposed to reduce 
the evaluation for gout to a noncompensable rating. 
 
Received at the RO in November 1992, were additional records 
from the Great Falls Clinic dated in April 1989 through 
December 1989.  In April 1989 the veteran was noted to have 
no more troubles with the knees.  His uric acid was reported 
to be 7.9. 
 
Also of record is a March 1993 letter signed by the 
veteran's private medical doctor, Steven Akre, M.D., which 
indicates that foot and ankle X-rays disclosed no evidence 
of destructive damage attributable to gout.  A tiny 
calcified fragment on the inner side of the ankle was 
considered the possible result of an old fracture and 
determined not to be related to gout or arthritis.  Dr. Akre 
stated that the veteran will take Allopurinol permanently 
for suppression of his tendency to have acute attacks of 
gout and to prevent kidney difficulties from the 
accumulation of uric acid.   
 
At his April 1993 personal hearing the veteran indicated 
that he attributes current knee, ankle and toe problems to 
gout.  He related that since 1989, and while taking 
Allopurinol, he has had steady joint pains, which he feels 
are due to uric acid.  The veteran described additional 
symptoms which reportedly increase each year, and which he 
attributed to gout and the secondary effects of Allopurinol, 
which include the following: constant tingling and aching in 
his hands, which is worse in the winter, and episodes of 
aching in his toes, which last approximately a day, and do 
not disable him from working.  The hearing officer stated 
that the veteran had initiated a new claim for tingling and 
pain in the hands and feet.  Received at the hearing were 
copies of excerpts from various publications which discuss 
the general characteristics of gout, and the side effects of 
Allopurinol.  The veteran's wife stated that she had 
highlighted parts of the discussions which her husband had 
indicated applied to him.   
 
Entitlement to Restoration of a 20 percent Evaluation for 
Gout 
 
In general, disability evaluations are assigned by applying 
a schedule of ratings which represent, as far as can 
practically be determined, the average impairment of earning 
capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Such 
evaluations involve considerations of the level of 
impairment of the veteran's ability to engage in ordinary 
activities, to include employment. 38 C.F.R. § 4.10.   
 
Although regulations require that, in evaluating a given 
disability, the disability be viewed in relation to its 
whole history, 38 C.F.R. § 4.1, 4.2, the present level of 
disability is of primary concern. Francisco v. Brown, 7 
Vet.App. 55, 58 (1994).  In evaluating the veteran's claim, 
all regulations which are potentially applicable through 
assertions and issues raised in the record have been 
considered, as required by Schafrath v. Derwinski, 1 Vet. 
App. 589 (1991). 
 
Where the regulations provide no specific rating for a 
disorder, it is permissible to rate under a closely related 
disease in which the functions affected, anatomical 
localizations and symptomatology are closely analogous. 38 
C.F.R. § 4.20.  The veteran's disability is currently 
evaluated under the provisions of Diagnostic Code 5017 
pertaining to gout, which is rated as analogous to 
rheumatoid arthritis under the provisions of Diagnostic Code 
5002.  Code 5002 provides a 20 percent disability rating 
where there is evidence of one or two exacerbations a year, 
in a well-established diagnosis.  A 10 percent evaluation is 
for assignment under Code 5002, NOTE, for each major joint 
or group of minor joints affected by limitation of motion, 
which is noncompensable under the appropriate diagnostic 
code for the affected joint, but objectively confirmed by 
findings, such as swelling, muscle spasm, or satisfactory 
evidence of painful motion.   
 
In accordance with 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 
4.7, 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 required for that rating.  Otherwise the lower 
rating will be assigned. 
 
Initially the Board finds that the documents received from 
the veteran at his hearing relate to general knowledge 
concerning the nature and characteristics of gout, but do 
not indicate any new information pertaining specifically to 
the veteran.  On evidentiary evaluation of the record the 
Board observes that although the veteran reported 
generalized joint pain at his hearing, there is no objective 
medical evidence to indicate an exacerbation of gout since 
at least February 1990.  Additionally, the Board notes that 
there is no evidence of restricted range of motion in any 
joint which would warranted consideration under additional 
diagnostic codes, or assignment of a 10 percent rating 
pursuant to Code 5002, NOTE.  Accordingly, a compensable 
rating is not warranted.  The reduction in the previous 20 
rating is not based upon one examination, but rather on the 
entire record reflecting medical monitoring and treatment 
from February 1990 forward.  The provisions of 38 C.F.R. § 
3.344 apply to ratings which have continued for long periods 
at the same level (5 years or more).  They do not apply to 
disabilities which have not become stabilized. 
 
In exceptional cases where evaluations provided by the 
rating schedule are found to be inadequate, an 
extraschedular evaluation may be assigned which is 
commensurate with the veteran's average earning capacity 
impairment due to the service-connected disorder. 38 C.F.R. 
§ 3.321(b).  However, the Board finds that there is no 
evidence of any unusual or exceptional circumstances, such 
as marked interference with employment or frequent periods 
of hospitalization related to this disorder, that would take 
the veteran's case outside the norm so as to warrant an 
extraschedular rating.  
 
 
 
ORDER 
 
Restoration of a 20 percent evaluation for gout is denied. 
 
 
		 
	STEVEN L. COHN 
	Member, Board of Veterans' Appeals 
 
The Board of Veterans' Appeals Administrative Procedures 
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 
___ (1994), permits a proceeding instituted before the Board 
to be assigned to an individual member of the Board for a 
determination.  This proceeding has been assigned to an 
individual member of the Board. 
 
NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991), a decision of the Board of Veterans' Appeals granting 
less than the complete benefit, or benefits, sought on 
appeal is appealable to the United States Court of Veterans 
Appeals within 120 days from the date of mailing of notice 
of the decision, provided that a Notice of Disagreement 
concerning an issue which was before the Board was filed 
with the agency of original jurisdiction on or after 
November 18, 1988.  Veterans' Judicial Review Act, Pub. L. 
No. 100-687, § 402 (1988).  The date which appears on the 
face of this decision constitutes the date of mailing and 
the copy of this decision which you have received is your 
notice of the action taken on your appeal by the Board of 
Veterans' Appeals. 
 
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