Citation Nr: 0812618	
Decision Date: 04/16/08    Archive Date: 05/01/08

DOCKET NO.  05-33 780	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Entitlement to an initial evaluation in excess of 20 percent 
disabling for gout of the left big toe.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Associate Counsel




INTRODUCTION

The veteran served on active duty from February 1985 to April 
1988.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2002 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee.

The Board notes that the veteran filed a notice of 
disagreement with respect to a claim for entitlement to a 10 
percent disabling evaluation for hypertension effective April 
29, 1988, the date after discharge from active duty, based on 
a clear and unmistakable error contained in the rating 
decision dated in December 1998.  The RO subsequently issued 
a statement of the case regarding this issue in July 2005.  
The veteran did not file a substantive appeal regarding this 
issue and, therefore, the issue of entitlement to a 10 
percent disabling evaluation for hypertension effective April 
29, 1988, the date after discharge from active duty, based on 
a clear and unmistakable error contained in the rating 
decision dated in December 1998, is not before the Board for 
appellate review.

The veteran was scheduled for a personal hearing before the 
Board in October 2007, however he failed to appear.  Under 
the applicable regulation, if an appellant fails to appear 
for a scheduled hearing and a request for postponement has 
not been received and granted, the case will be processed as 
though the request for a hearing had been withdrawn.  
38 C.F.R. § 20.702 (d) (2007).  Accordingly, this veteran's 
request for a hearing is considered withdrawn.


FINDING OF FACT

The veteran's gout, left big toe, is manifested by 
exacerbations occurring several times a year, without weight 
loss or anemia, and without an impairment of overall health.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 20 percent 
for gout of the left big toe, have not been met.  38 U.S.C.A. 
§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 
4.40, 4.45, 4.71a; Diagnostic Codes 5002, 5017 (2007). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Initial Rating of Gout

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  
Separate diagnostic codes identify the various disabilities.  
Disabilities must be reviewed in relation to their history.  
38 C.F.R. § 4.1.  Other applicable, general policy 
considerations are:  interpreting reports of examination in 
light of the whole recorded history, reconciling the various 
reports into a consistent picture so that the current rating 
may accurately reflect the elements of disability, 38 C.F.R. 
§ 4.2; resolving any reasonable doubt regarding the degree of 
disability in favor of the claimant, 38 C.F.R. § 4.3; where 
there is a question as to which of two evaluations apply, 
assigning a higher of the two where the disability picture 
more nearly approximates the criteria for the next higher 
rating, 38 C.F.R. § 4.7; and, evaluating functional 
impairment on the basis of lack of usefulness, and the 
effects of the disabilities upon the person's ordinary 
activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 
Vet. App. 589 (1991).

Pyramiding, the evaluation of the same disability, or the 
same manifestation of a disability, under different 
diagnostic codes, is to be avoided. 38 C.F.R. § 4.14.  It is 
possible, however, for a veteran to have separate and 
distinct manifestations attributable to the same injury, 
which would permit a rating under several diagnostic codes.  
The critical element permitting the assignment of multiple 
ratings under several diagnostic codes is that none of the 
symptomatology for any one of the conditions is duplicative 
or overlapping with the symptomatology of the other 
condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

In deciding the veteran's claim, the Board has considered the 
United States Court of Appeals for Veterans Claims (Court) 
determination in Fenderson v. West, 12 Vet. App. 119 (1999) 
and whether he is entitled to an increased evaluation for 
separate periods based on the facts found during the appeal 
period.  In Fenderson, the Court held that evidence to be 
considered in the appeal of an initial assignment of a rating 
disability was not limited to that reflecting the then 
current severity of the disorder.  The Court also discussed 
the concept of "staging" ratings, finding that, in cases 
where an initially assigned disability evaluation has been 
disagreed with, it was possible for a veteran to be awarded 
separate percentage evaluations for separate periods based on 
the facts found during the appeal period.  See id. at 126.

Disability of the musculoskeletal system is primarily the 
inability, due to damage or inflammation in parts of the 
system, to perform normal working movements of the body with 
normal excursion, strength, speed, coordination and 
endurance.  The functional loss may be due to absence of part 
or all of the necessary bones, joints and muscles, or 
associated structures, or to deformity, adhesions, defective 
innervation, or other pathology, or may be due to pain, 
supported by adequate pathology and evidenced by visible 
behavior of the claimant undertaking the motion.  Weakness is 
as important as limitation of motion, and a part which 
becomes painful on use must be regarded as disabled.  See 
DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 
(2007); see also 38 C.F.R. § 4.45 (2007).

In December 2002, the RO continued service connection for the 
veteran's gout, at a rating of 20 percent disabling, under 
Diagnostic Code 5017.  

Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5017, gout 
will be rated under Diagnostic Code 5002.  Under that Code, a 
100 percent rating is warranted for rheumatoid arthritis 
(atrophic) as an active process with constitutional 
manifestations associated with active joint involvement, 
totally incapacitating.  When less than the criteria for a 
100 percent rating but with weight loss and anemia  
productive of severe impairment of health or severely 
incapacitating exacerbations occurring 4 or more times per 
year or a lesser number over prolonged periods, a 60 percent 
rating may be assigned.  With symptom combinations productive 
of definite impairment of health objectively supported by 
examination findings or incapacitating exacerbations 
occurring three or more times per year, a 40 percent rating 
evaluation may be assigned.  One or two exacerbations per 
year in a well-established diagnosis warrant a 20 percent 
rating.  Alternatively, chronic residuals can be rated based 
on limitation of motion, with a 10 percent assigned for 
limited motion which is noncompensable under the appropriate 
rating codes for the joints.  See 38 C.F.R. § 4.71a, 
Diagnostic Code 5002.

For chronic residuals such as limitation of motion or 
ankylosis, favorable or unfavorable, the disability is rated 
under the appropriate diagnostic codes for the specific 
joints involved.  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.  It is noted that limitation of motion must be 
objectively confirmed by findings such as swelling, muscle 
spasm, or satisfactory evidence of painful motion and that 
the ratings for active process will not be combined with the 
residual ratings for limitation of motion or ankylosis; 
rather, the higher evaluation should be assigned.  See 38 
C.F.R. § 4.71a, Diagnostic Code 5002.

The veteran's private medical records indicate that he was 
treated for gout of the left big toe in December 2001, 
January 2002, February 2002, March 2002, April 2002, May 
2002, October 2002, January 2004, February 2004, and March 
2004.  In a statement dated January 2004, Dr. H.C. reported 
that the veteran had four "severe exacerbations" in the 
prior year that required emergency treatment at either the 
Emergency Department of the local hospital or in his office.  
A February 2004 medical opinion letter of private physician, 
Dr. M.F, indicated that the veteran had been treated four 
times for gout exacerbations during 2003 and rendered the 
opinion that the veteran's acute flare-ups or exacerbations 
of gout, requiring multiple visits to his medical doctors, 
constituted incapacitating exacerbations.  VA outpatient 
records reveal that the veteran was treated for exacerbations 
of his gout of the left big toe in February 2002, November 
2003, February 2004, and March 2004.  During each of these 
gout exacerbations, the veteran's symptoms include pain and 
swelling and are addressed with anti-inflammatory medications 
such as Dexamethasone, Medrol, Decadron, and Kenalog.  The 
veteran has been prescribed Probenicid, Salsalate, Colchicine 
and Allopurinal for long term control of his gout of the left 
big toe. 

The medical records do not reveal any weight loss or anemia 
associated with the veteran's gout of the left big toe.  The 
medical records also do not reveal any incapacitating 
exacerbations.

The veteran was afforded a VA Compensation and Pension (C&P) 
foot examination in April 2007.  The veteran reported that he 
receives current treatments, including medication, and that 
his response to treatment has been fair.  The veteran 
indicated that the medication has been partially effective in 
relieving the symptoms.  The veteran stated that he has 
exacerbations several times a year but less than monthly that 
have a major functional impact due to pain and swelling.  The 
veteran indicated that his exacerbations last one to two 
weeks.  The veteran reported that he can stand for 15 to 30 
minutes and can walk a quarter of a mile.  Upon examination, 
the veteran's left foot was found to have no objective 
evidence of painful motion, swelling, tenderness, 
instability, weakness, abnormal weight bearing, hammertoes, 
hallus valgus or rigidus, pes cavus, malunion or nonunion of 
the tarsal or metatarsal bones, flatfoot, muscle atrophy, or 
other foot deformity.  X-rays revealed moderate scattered 
degenerative changes of the first meta tarsal phalangeal 
joint.  The examiner found that the veteran's disability has 
no impact upon the veteran's daily activities when it is in 
remission.

As noted above, in order to be entitled to the next-higher 40 
percent disability evaluation under Diagnostic Code 5002, the 
evidence must demonstrate symptom combinations productive of 
definite impairment of health, objectively supported by 
examination findings, or incapacitating exacerbations 
occurring three or more times a year.  While the Code section 
does not define what constitutes an "incapacitating 
exacerbation," the term is defined in the rating schedule 
for the musculoskeletal system, notably in regards to 
intervertebral disc syndrome.  In the explanatory notes for 
the new criteria for intervertebral disc syndrome an 
incapacitating episode is a period of acute signs and 
symptoms that require bed rest prescribed by a physician and 
treatment by a physician.  38 C.F.R. § 4.71a; see also 
Diagnostic Codes 7345 and 7354, Notes (2) ("incapacitating 
episode" means a period of acute signs and symptoms severe 
enough to require bed rest and treatment by a physician.).

The Board has thoroughly reviewed the claims file, and 
concludes that the criteria for the next-higher 40 percent 
evaluation under Diagnostic Code 5002 is not appropriate.  
The veteran's gout of the left big toe more closely 
approximates the criteria for an evaluation of 20 percent 
disabling.  The evidence reveals 3 or more episodes of gout 
pain in 2002, 2003, and 2004.  Such episodes generally 
involved pain, swelling, and required medical intervention in 
the form of anti-inflammatory drugs.  However, at no point, 
was the veteran prescribed bed rest and at no point does the 
medical evidence show that the veteran's overall health was 
definitely impaired.  Treatment records for February 2002, 
November 2003, February 2004, and March 2004 objectively 
reveal 4 exacerbations, as demonstrated by VA outpatient 
treatment reports; however, again, at no point was the 
veteran prescribed bed rest and at no point was the veteran's 
overall health definitely impaired.

While the record reveals, as discussed above, that Dr. M.F. 
used the term "incapacitating exacerbation" to describe the 
severity of the veteran's gout attacks, he does not state, 
nor does the evidence show, that bed rest was prescribed by a 
physician.  Given the April 2007 VA opinion, indicating the 
less than impairment of overall health caused by the 
veteran's gout of the left big toe during a flare-up, and 
given the medical record showing treatment short of physician 
prescribed bed rest and a lack of an opinion characterizing 
the veteran's gout of the left big toe as an impairment of 
the veteran's overall health, the Board finds that the 
preponderance of the evidence is against a grant of a higher 
initial.  This conclusion recognizes the veteran's pain, 
weakness and limited motion during his exacerbations, as 
described in his statements and elsewhere in the claims file; 
however, the impact on pain, weakness and limited motion does 
not show an impairment of the veteran's overall health.  See 
DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  

While the Board has determined that the next-higher 40 
percent disability rating under Diagnostic Code 5002 is not 
warranted, the Board has also considered whether a rating in 
excess of 40 percent is warranted.  In order to be entitled 
to a 60 percent evaluation, the evidence would have to 
establish 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.  In this case, there is no showing of 
weight loss or anemia, nor does the evidence reveal 4 or more 
severely incapacitating exacerbations per year.  Overall, the 
disability picture is more accurately reflected under the 
criteria for a 20 percent rating  

The Board has also considered whether a rating in excess of 
20 percent could be obtained by virtue of the veteran's 
chronic residuals of gout of the left big toe, as measured by 
limitation of motion of the part affected.  Thus, 
consideration was given to Diagnostic Code 5278 (claw foot, 
pes cavus, acquired).  As demonstrated at his VA examination 
in April 2007, the veteran's foot had full and painless range 
of motion and, therefore, rating under Diagnostic Code 5278 
is not warranted.  In addition, Diagnostic Code 5278, which 
addresses limited motion of the great toe, only affords a 10 
percent evaluation and thus cannot serve as a basis for a 
rating in excess of 20 percent here.

The Board finds that this matter need not be remanded to have 
the RO refer the veteran's claim to the Under Secretary for 
Benefits or to the Director of the Compensation and Pension 
Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of 
an extra-schedular rating.  The Board notes the above 
determination is based on application of pertinent provisions 
of the VA's Schedule for Rating Disabilities, and there is no 
showing that the veteran's gout of the left big toe reflects 
so exceptional or so unusual a disability picture as to 
warrant the assignment of a compensable evaluation on an 
extra-schedular basis, and indeed, neither the veteran nor 
his representative have identified any exceptional or unusual 
disability factors.  See 38 C.F.R. § 3.321.  In this regard, 
the Board observes that there is no showing the disability 
results in marked interference with employment.  Moreover, 
his gout of the left big toe has not required frequent 
periods of hospitalization, or otherwise rendered impractical 
the application of the regular schedular standards.  In the 
absence of evidence of these factors, the criteria for 
submission for assignment of an extra-schedular rating are 
not met.  Thus, a remand this claim to the RO for the 
procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not 
necessary.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash 
v. Brown, 8 Vet. App. 218, 227 (1995).

II. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

Here, the VCAA duty to notify was satisfied by way of a 
letter sent to the appellant on May 2002 that fully addressed 
all four notice elements and was sent prior to the AOJ 
decision on appeal in this matter.  The letter informed the 
appellant of what evidence was required to substantiate the 
claims and of the appellant's and VA's respective duties for 
obtaining evidence.  While the letter did not explicitly ask 
that the veteran provide any evidence in his possession that 
pertains to the claim, as per § 3.159(b)(1), he was advised 
of the types of evidence that could substantiate his claim 
and to ensure that VA receive any evidence that would support 
the claim.  Logically, this would include any evidence in his 
possession.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court 
held that, upon receipt of an application for a service-
connection claim, 38 U.S.C. § 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, each of the five elements of the 
claim, including notice of what is required to establish 
service connection and that a disability rating and an 
effective date for the award of benefits will be assigned if 
service connection is awarded.

Here, the veteran is challenging the initial evaluation 
assigned following the grant of service connection.  In 
Dingess, the Court held that in cases where service 
connection has been granted and an initial disability rating 
and effective date have been assigned, the typical service-
connection claim has been more than substantiated, it has 
been proven, thereby rendering section 5103(a) notice no 
longer required because the purpose that the notice is 
intended to serve has been fulfilled. Id. at 490-91.  Thus, 
additional notice was not required in this case once service 
connection was granted.

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA outpatient 
treatment records.  The veteran submitted private treatment 
records from Med One (includes Dr. P.M. and Dr. M.B.) dated 
from June 1994 to April 2002; Bristol Regional Medical Center 
dated in April 2002; Dr. C dated in May 2002, October 2002, 
and January 2004; and Dr. M.F. dated in February 2004.  The 
appellant was afforded a VA C&P medical examination in April 
2007.  Significantly, neither the appellant nor his 
representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claim that has not 
been obtained.  Hence, no further notice or assistance to the 
appellant is required to fulfill VA's duty to assist the 
appellant in the development of the claim.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see 
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


ORDER

Entitlement to an initial evaluation in excess of 20 percent 
disabling for gout of the left big toe, is denied.



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs