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postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2007). Accordingly, this veteran's request for a hearing is considered withdrawn.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