Citation Nr: 0933008 Decision Date: 09/02/09 Archive Date: 09/14/09 DOCKET NO. 95-16 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for gout. (The issue of whether the Veteran's VA compensation benefits are subject to recoupment of special separation benefits (SSB) in the adjusted amount of $39,066.84, to include whether recoupment should be waived due to financial hardship, is the subject of another decision under the same docket number.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to November 1976, and from May 1980 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The RO granted service connection for gout of both big toes and assigned a zero percent disability rating effective September 9, 1992, the date following separation from the Veteran's second period of active duty. In May 1994, the appellant and his wife testified at a hearing held at the RO in Atlanta, Georgia, before a hearing officer, a transcript of which has been associated with the claims folder. In a September 1994 hearing officer decision, the Veteran was granted a 20 percent disability rating for gout, effective September 9, 1992, The RO issued a November 1994 rating decision implementing the rating increase and the Veteran perfected an appeal as to the assignment of a 20 percent rating. In August 2000, the Veteran's claims file was subsequently transferred to the VA RO in New Orleans, Louisiana. A Travel Board hearing was scheduled at the RO in March 2003, but two weeks before the scheduled hearing, the Veteran withdrew his request for a Travel Board hearing. Therefore, no further development with regard to a hearing is necessary. In its December 2003 Remand, the Board referred the following matters to the RO for appropriate action: an issue of total disability rating for compensation purposes on the basis of individual unemployability (TDIU); an issue of service connection for a headache disorder; an issue of secondary service connection for a left ankle disorder; an issue of fibromyalgia; an issue of upper back pain; and an issue of a temporary total disability rating under 38 C.F.R. § 4.29 for periods of hospitalization from November 26, 1996, to December 24, 1996, and from January 16, 1998, to February 11, 1998, respectively. Since no temporary claims folder has been created and the claims folder does not reflect any action with respect to these matters, the Board is again referring them to the RO for appropriate action. FINDINGS OF FACT 1. At no time did the Veteran's gout manifest in chronic residuals, definite impairment of health objectively supported by examination findings, weight loss, anemia, or severely incapacitating exacerbations. 2. The Veteran's gout manifested in incapacitating exacerbations that occurred less frequently than 3 times per year and that were not for prolonged periods. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent has not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.71a and Diagnostic Codes 5002, 5017, and 5024 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (38 C.F.R., Part 4), which represents the average impairment in earning capacity resulting from injuries incurred in military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify various disabilities. 38 C.F.R., Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally, 38 C.F.R. §§ 4.1, 4.2. Where, as here, entitlement to compensation has been established, but a higher initial disability rating is at issue, the extent of impairment throughout the entire period, beginning with the filing of the claim, must be considered and a determination must be made regarding whether "staged" ratings are warranted. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (when a disability rating is initially assigned, separate ratings should be considered for separate periods of time, known as staged ratings). As discussed below, staged ratings are not warranted here because at no time during the rating period did the manifestations of the Veteran's gout meet the criteria for a rating higher than 20 percent. Service-connected disabilities are evaluated by using the criteria under various diagnostic codes in the rating schedules. Under Diagnostic Code (DC) 5017 for gout, the rating schedule provides that the criteria under DC 5002 should be applied. 38 C.F.R. § 4.71a, DC 5017 & Notes following DC 5024. The Veteran's gout disability is currently rated at 20 percent for the entire rating period. Diagnostic Code 5002 provides for three higher ratings: 100 percent, 60 percent, and 40 percent. A 100 percent rating is assigned for an active condition with constitutional manifestations, associated with active joint involvement that is totally incapacitating. DC 5002, 38 C.F.R. § 4.71a. A 60 percent rating is assigned for gout less than the 100 percent criteria, but with: (1) weight loss and anemia productive of severe impairment of health or (2) severely incapacitating exacerbations occurring 4 or more times a year or (3) a lesser number over prolonged periods. DC 5002, 38 C.F.R. § 4.71a (alternative criteria numbered to facilitate application to this Veteran's disability). A 40 percent rating is assigned for: (1) symptom combinations productive of definite impairment of health objectively supported by examination findings or (2) incapacitating exacerbations occurring 3 or more times a year. DC 5002, 38 C.F.R. § 4.71a (alternative criteria numbered to facilitate application to this Veteran's disability). Some of the criteria are clearly not met on this record. The Veteran does not claim to be totally incapacitated by his gout disability and the record supports his ability to function in daily life and perform the activities of daily life. He goes to frequent mental health treatment sessions and appeared in person at his personal hearing. The objective medical evidence shows that he had no tophi or other constitutional manifestations of his gout disability. May 2007 C&P Exam (the chronic residuals of gout are: formation tophi, deformed joints, moderate pain on active and passive motion, longer episodes of acute attacks with kidney destruction, weakness, X-Ray evidence of joint with erosive degeneration, and chronic synovitis; Veteran has no chronic residuals); see also October 1993 C&P Exam (upon examination, no evidence currently of gout); January 1997 C&P General Examination (no tophi); April 1994 Rheumatology Consult (no tophi); January 1997 C&P Exam (no tophaceous deposits). Since none of the criteria for a 100 percent rating are manifested by the Veteran's gout disability, a 100 percent disability rating is not warranted on this record. With respect to the criteria for the other two ratings, there is no evidence of anemia in this record nor is there definite impairment of health objectively supported by examination findings. May 2007 C&P Exam (laboratory results of April 2007 show no anemia; no chronic residuals of gout). As for weight loss, the record shows that the Veteran is obese, although as his mental health improved and he focused on controlling his diabetes, he lost some weight. May 2007 C&P Exam (mild weight loss). There is nothing in the record to show he experienced weight loss due to gout. The remaining schedular criteria relate to the severity and frequency of exacerbations. There is conflicting evidence in the record on this matter. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). In determining the weight to be given the evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, self-interest, desire for monetary gain, malingering, bad character, interest, bias, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Compensation and Pension (C&P) examinations were conducted in October 1993, January 1997, September 2000, and May 2007. The objective medical evidence from those examinations is that the Veteran's gout disability is well-controlled by medication and is in remission or not manifesting any symptoms at the time of the examinations. October 1993 C&P Examination (no current evidence of gout; history of gout, big toes, currently asymptomatic); January 1997 C&P exam (gouty arthropathy under treatment, in remission); September 2000 C&P Feet Exam (full range of motion of all toes; joint not painful now); May 2007 C&P Joints & Spine Exam (there is active gout which is controlled with daily allopurinol). These C&P examiner's findings are consistent with other treatment records concerning gout in the record. See, e.g. January 1995 Progress Note (no evidence of tophi; small effusion in elbows; gout is stable; gout medication changed); September 1995 Primary Care Progress Note (gout controlled); October 1996 General Note (no symptomatic gout disease at present); December 1996 MH Psychiatry General Progress Note (gout under better control of symptoms on present medications); December 1997 Outpatient/Primary Care Clinic (gout controlled with Indocin). These medical findings are provided by medical professionals able to provide competent medical evidence. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). And since they are based on physical examination, as well as a review of the Veteran's history and relevant tests, and since the reports are consistent with one another, the Board finds that the medical evidence identified above is very credible. The record also contains much evidence of statements by the Veteran indicating that he has frequent and severe exacerbations of his gout disability. Although the Veteran claims that he received treatment in 1993 for gout, the VA records from February 1993 to November 1993 show treatment for headaches and psychiatric evaluations, but no mention of gout. There is no mention of gout in treatment records until after the noncompensable rating was assigned for that disability in January 1994. Even then, there are very few records that show that a medical professional determined that the Veteran's pain was attributable to gout. See April 1994 Rheumatology Progress Note and Medical Record & Discharge Instructions (minimal swelling of the elbow; impression is probable gout); August 1994 Medical Certificate and Discharge Instructions (after running, Veteran had acute exacerbation of gouty arthropathy; marked edema, warmth and signs of tenderness; unable to draw fluid from knee; next day much better); November 1995 Pain Clinic Progress Note (mental health clinic referral for pain secondary to gout; examiner noted minor attack; treatment was continue to take medications prescribed by primary physician; return to pain clinic as needed); December 1996 Discharge Summary (consult with rheumatology because gout was no longer active; flare-up of gout in hospital when medications were discontinued secondary to delirium); May 1999 Medical Certificate (Veteran complains of pain in several joints; diagnosis gout with joint pain); May 2000 Medical Certificate (complains of pain in elbow; impression is gout attack); March 2001 Ambulatory/Outpatient Care Note (complains of pain in left wrist for 1 week; exam showed tenderness left wrist with no effusion; possible exacerbation of gout); December 2003 Orthopedics Consult Note (Veteran complains of gout; exam reveals some tenderness at great toe MP joint and some tenderness at right ankle joint; full range of motion; no swelling of ankle; Assessment: gout with possible mild traumatic arthritis of the left akne; I suspect most of his problem is gout; Veteran given prescription for when he experiences gout flare-up); May 2004 Nursing Ambulatory/Outpatient Care Note (complains of gout pain; dosage of Allopurinol increased). In all, the record establishes that nine times over ten years, the Veteran was treated during a flare-up of gout. There are some treatment records where the examiner expresses doubt that the pain is due to gout or notes that the gout is well-controlled. See February 1994 Progress Note (complaints of polyarthralgias today; advised Veteran to make rheumatology and neurology appointments for the same day); May 1994 VA Progress Note (minimal swelling with multiple tender points; assessment is probable gout but would prefer to have proof; fair amount of muscular pain indicates fibromyalgia possible; Veteran instructed to return when joints are swollen for tap); September 1995 Primary Care Progress Note (Veteran complains of increasing joint pain with increased cold weather; assessment degenerative joint disease; gout controlled); October 1996 General Note (during psychiatric hospitalization, doctor consulted with pharmacology whether medications for gout could be discontinued because there was no symptomatic disease at present). And throughout the rating period, the Veteran frequently reported to his mental health caregiver or primary care provider that he had been experiencing pain, which he often attributed to gout, but there was then no examination with objective findings to support his complaints. See, e.g., August 1994 Progress Note (Veteran complains that gout attack prior week caused his depression); December 1994 Mental Health Progress Note (Veteran complains that his is depressed because of increasing gout in his right hand); February 1996 General Note (Veteran reports because he has pain in joints and bones, he finds it difficult to move and consequently go to work, so he becomes angry and depressed; currently, his mood is improved and he has crying spells less frequently); May 1998 MH Psychiatry General Progress Note (Veteran reports brief episode of gout last week); June 2000 Nursing Note (Veteran continues to report "gout pain" and feels that the medication is doing little); July 2002 Social Work Note (complains of exacerbation of pain in recent weeks);February 2003 Psychiatry Note (my joints hurt); April 2006 Nursing Ambulatory/Outpatient Care Note (complains of gout pain). But a bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The lack of contemporaneous medical evidence alone does not render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). But here, the record contains ample evidence that the Veteran's statements are not reliable. A lay person is competent to testify about injury or symptomatology where the determinative issue is not medical in nature. Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995) (lay statements about a person's own observable condition or pain are competent evidence); Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (lay testimony is competent when it regards features or symptoms of injury or illness); 38 C.F.R. § 3.159(a)(2) (lay evidence can be provided by a person who has no specialized education, training, or experience, but who knows the facts or circumstances and conveys those matters that can be observed and described by a lay person). Thus, the Veteran is competent to present evidence that he experiences pain, how often he experiences that pain, and what body part hurts. But the Veteran is not competent to provide an opinion that the pain he experiences is from his gout disability, especially in light of the fact that he has other medical conditions that affect his joints. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a lay person is not competent to give evidence of matters that require medical knowledge). In addition, the Board determines that while the Veteran is competent to make statements as to the frequency of exacerbating episodes and the severity of his pain, those statements are not entitled to much weight. First, the statements that he has long episodes of gout exacerbations are generally inconsistent with the findings of the C&P examiners that the Veteran's gout was well-controlled with medication or in remission. See C&P Examinations of October 1993, January 1997, September 2000, and May 2007. See also July 1995 Hospital Discharge Report (Veteran reported gout was mostly in remission, causing him mostly only mild discomfort). In addition, some statements are implausible on their face, as when he testified that he experiences a gout attack every month and when thereafter asked how long his gout attacks lasted, he testified that they last between several weeks and six months. Transcript at 4. If the attacks last several months, then they necessarily do not occur monthly. Moreover, the treatment records in the claims folder neither reflect that the Veteran was cancelling mental health appointments due to gout pain nor that he was seeking treatment of gout pain very frequently. Other statements of the Veteran are inconsistent with one another. His written April 1994 statement both indicates that he is in constant pain with attacks lasting weeks or months and that the gout medication was having the desired effect. April 1994 Statement in Support of Claim by Veteran. At the October 1993 C&P examination, the Veteran merely told the examiner that his toe "currently was bothering him." October 1993 C&P Exam (the examiner's objective finding at that exam was that the Veteran's gout was currently asymptomatic). After he was assigned a noncompensable rating in January 1994, the Veteran testified at the personal hearing held in May 1994 that his gout had been getting progressively worse ever since service. Transcript at 2. In one statement, he indicated that the altercation leading to his January 1993 arrest was because of the frustration over being unable to work due to his gout, but he told an examiner during psychiatric hospitalization that he was arrested when he fought with his ex-wife's boyfriend. Compare July 1995 VA Hospital Discharge Report with April 1994 Statement of Veteran. Other evidence shows that the Veteran has experienced financial difficulty, so he had an incentive to exaggerate his symptoms in order to obtain a higher rating. He quit many jobs in the two years following service. April 1994 Statement in Support of Claim; July 1995 Hospitalization Discharge Report (Veteran worked eight jobs between September 1992 and July 1995). Financial stress was recorded as an environmental factor affecting his mental health. June 1995 Social Work DFNTA Base/Assessment (Veteran is feeling a lot of pressure due to the amount of child support he is being required to pay); November 1999 Social Work Data Base/Assessment (Axis IV: financial concerns); June 2000 Social Work Psychosocial Assessment Update Note (Veteran's wife noted that since the SSB is being recouped and she had to quit her job to take care of the Veteran, they have financial concerns); July 2000 Psychiatry Note (Axis IV: financial concerns). Because he had received special separation benefits (SSB), VA wrote to the Veteran in December 1994, proposing to stop his VA compensation benefits until the amount of the SSB was recouped. December 1994 Letter from RO to Veteran About Proposed Recoupment; January 1995 Notice of Determination (please waive recoupment due to financial hardship). See also August 1993 Psychiatry Note (Veteran reports that his ex-wife has been ruining his credit reports for revenge); April 1994 Statement of Veteran (Veteran notes that in January 1993 he was unable to keep up on his child support at that time). The Veteran also has a history of psychiatric hospitalizations: in September 1996 for two weeks, in October 1996 for one month, in November 1996 for one month, in January 1998 for one month, and in April 1999 for nine days, and in June 1999 for one week. June 1999 Discharge Report. And the Veteran's mental health at the time he was making the statements in those years shortly after service may have affected his ability to provide reliable evidence of the state of his disability. See September 1993 Mental Health Clinic Consultation Sheet (Veteran has history of suicide attempts and wife reports he gets confused at times and does not remember what he does); September 1993 Medical Certificate (Veteran tried suicide in December 1992 by drinking poison); October 1993 Medical Certificate (I have large blank spots where I don't remember anything); July 1995 Psychiatry Consult (Veteran took tests and left before he could be evaluated; test results showed thought disorder and major depression); November 1996 General Note (Veteran hallucinating about a dog being in the room during his session; alteration in thought process); June 1999 Discharge Report (some thought cogent but admits to auditory hallucinations; thought processes on discharge cogent); March 1998 Statement by Veteran's Brother (he can not stay with even the simplest of tasks for long; he forgets what he is doing and left unattended, he wanders off). And the Veteran's descriptions of his condition are not quite consistent with the other lay evidence in the record. For example, he claims that he was bedridden between six weeks and six months with gout attacks. Transcript at 4. In describing the effects of gout, his step-son indicated that the Veteran had had to give up jobs, sports, and other things and that his gout lasted for days or sometimes months. He did not indicate that the Veteran was ever bedridden. April 1994 Statement by Veteran's Step-son. Other family members submitted a statement that when the Veteran was experiencing a gout attack, he could "barely walk" and if it affected his hands, he could not pick up a cup or the simplest things. This statement indicates that the Veteran was walking during attacks. Moreover, they did not mention that he had ever been bed-ridden. April 1994 Statement by Veteran's Brother and Sister-in-Law. Even the written statement of the Veteran's wife fails to mention that he was ever bedridden. May 1994 Statement by the Veteran's Wife (not only does the gout cause him pain and trouble in holding a job, but it affects his whole outlook on everyday life, making him feel old). And the example of severity that the Veteran's wife provided at the May 1994 personal hearing was that he had to keep his foot elevated and that during one 4-month period in early 1993, he had had to walk with crutches. Transcript at 8. Then, she appears to try to correct her testimony by adding that he was in bed, but when he got up, it was with crutches. Transcript at 8. But there is other evidence in the record that the Veteran was on crutches in early 1993 because in January 1993, while he was in jail, he injured his ankle when he fell in the shower. The lay statements that the Veteran was on crutches because of his gout are not supported by the other evidence. See January 1993 Arrest Warrant; January 1993 Emergency Room Report (Veteran fell in shower at jail and injured left foot, which was put in splint). Moreover, while the Veteran tends to attribute joint pain as gout (April 1994 Statement in Support of Claim by Veteran), he has also been diagnosed with other medical conditions involving his joints, such as tendonitis in the knees and ankles, as well as arthritis in both ankles and he has had recurring infections in the inside borders of both big toenails. See September 2000 C&P Joints Exam (Veteran diagnosed with recurrent pain over the knees and ankles due to tendonitis; degenerative changes of the right ankle; post arthritic changes in the left ankle status post left ankle surgery); March 2001 Ambulatory/Outpatient Care Note (complains of pain of left wrist times one week; exam shows tenderness of left wrist but no edema; possible exacerbation of gout); December 2001 Operative/Procedure Note (Veteran has multi-year history of pain with intermittent infection of the inside borders of both big toenails). The Veteran's statements about the etiology of his pain are thus not always accurate. Given the Veteran's psychiatric issues and financial difficulty, the internally inconsistent statements and the inconsistencies between his statements and those of medical professionals and other lay persons, the Board finds that the Veteran's statements as to the frequency of gout exacerbations and the severity of his gout disability are not credible. That is not to say that the Veteran does not have a disability of gout or that he did not experience exacerbations of that disability during the rating period. The lay statements of his wife and other family members make clear that the Veteran had attacks of gout at various times. But given that the contemporaneous treatment records show treatment for only nine attacks in ten years, and no year in which there were three attacks, this record does not establish that there are incapacitating exacerbations occurring 3 or more times a year (as described in the criteria for a 40 percent rating) or severely incapacitating exacerbations occurring 4 or more times a year (as described in the criteria for a 60 percent rating). DC 5002, 38 C.F.R. § 4.71a Nor does the record establish that there are fewer than four incapacitating episodes of gout per year that last over prolonged periods (as described in the criteria for a 60 percent rating). DC 5002, 38 C.F.R. § 4.71a. There is evidence from the Veteran and his wife about one incident of a four-month exacerbation in early 1993. But a police report and an emergency room treatment report in the record show that the Veteran was not experiencing gout, but had injured his ankle in the shower while in jail. And the step-son's statement that sometimes the Veteran's gout attacks last for months is simply not supported by the rest of the evidence in the record. As noted above, the Veteran frequently attributed his pain to gout despite the fact that he had other medical conditions involving his joints. And since there is no evidence of the Veteran's step-son having medical training, he is not competent to determine the etiology of the Veteran's pain. Espiritu, 2 Vet. App. 492. The Veteran's representative argues in the February 2003 Statement of Accredited Representative in an Appealed Case that because the Veteran frequently complains of pain in various joints, he should be rated separately for those joints, as provided in the notes following Diagnostic Code 5002. 38 C.F.R. § 4.71a (for residuals such as limitation of motion or ankylosis, rate under the appropriate diagnostic codes for the specific joints involved. 38 C.F.R. § 4.71a, Criteria for rating chronic residuals. But the schedular criteria for Diagnostic Code 5002, which is used to evaluate gout, makes clear that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis; rather, the higher evaluation should be assigned. 38 C.F.R. § 4.71a, Note following Diagnostic Code 5002. But notwithstanding the Veteran's complaints that the pain in his various joints is due to gout, the record does not support a finding of residuals of gout in his joints. Indeed, it was in response to that argument that the Board required another C&P examination be conducted in May 2007. The examiner was explicitly asked to identify all chronic residuals of the Veteran's gout disability. He determined there were none. Further, he explicitly stated that the subjective complaints of pain due to gout were not supported by the objective findings noted on the examination report. Rather, the pain due to motion with generalized weakness and some atrophy from disuse was due to on-going degenerative arthritis and the aging degeneration of joints with arthritis and was not due to gout influence. May 2007 C&P Examination. Since there are no residuals of gout in the Veteran's joints, an increased rating from evaluating the chronic residuals of gout is not warranted. In any event, most of the evidence relied upon by the Veteran's representative is nothing more than the Veteran attributing the pain in his various joints to gout rather than medical determinations that the Veteran was experiencing an exacerbation of gout at that time. See, e.g., March 2002 Pain Assessment Report (Veteran report to the nurse that he had had pain in the right ankle and left hallux for three weeks, with aching and burning; no findings at all by a medical professional); July 2002 Psychiatry Note (Veteran stated that gout pain is constant and current exacerbation now for some month; no examination or assessment of the Veteran's physical condition was conducted); September 2002 Psychiatry Note (Veteran says he has been having more pain in joints; otherwise, the same; no examination or assessment of the Veteran's physical condition was conducted); October 2002 Pain Assessment (Veteran reports constant pain in back and shoulders that hurts most of the time; under the place for observation of pain site and comments, the report is blank; the plan was recorded as primary care; there is no examination or assessment of the Veteran's condition conducted). Some of the evidence relied on by the Veteran's representative did involve an examination. In October 2002, the Veteran complained of pain in his neck and lower back. The treatment record shows that he tripped and fell the day before and sprained his ankle. The examination revealed no pedal edema and no restriction on movement. The examiner's assessment was that the physical examination was essentially within normal limits, but an X-ray was ordered for the lumbar and cervical spine. Gout was not mentioned in the report. October 20002 Ambulatory/Outpatient Care Note The representative also relies on the findings in the September 2000 C&P Feet examination to argue that a rating higher than 20 percent is warranted. Finding Number 6 is that the Veteran has pain and swelling over the medial aspect of the right foot near the base of the right great toe because of gout. The representative interprets that to be a description of the examination of the Veteran's right foot on that day. But the Board finds that in Findings Number 4 and 5, the examiner was describing the symptoms reported by the Veteran that occur whenever he would have a gout attack rather than making a finding concerning the conditions of that day. The Board's interpretation is based on the organization of the findings and on consistency with the rest of the report. The first three findings of the examination report are both feet appear okay; the Veteran has full range of motion of all the toes; and his joint is not painful right now. The examiner then switches gears in Findings Number 4 and 5 to describe what the Veteran experiences during a flare-up: the Veteran has to take rest during the flare up; and the Veteran has pain and swelling over the medial aspect of the right foot near the base of the right great toe because of gout. Here, the examiner unartfully used the phrase "because of gout" instead of "whenever there is a gout attack." To interpret it otherwise would mean that the examiner made inconsistent findings with respect to pain. Compare Finding Number 3 (not painful right now) with Finding Number 5 (has pain and swelling). The Board's interpretation is consistent with the rest of the record that shows that the Veteran's gout is well-controlled with occasional exacerbating episodes, not as frequent as three times per month. As for the findings in the September 2000 C&P Joints examination, while the examiner found there to be pain over both knees, he also found that the recurrent pain over the knees and ankles was due to tendonitis and that the Veteran has degenerative changes to the right ankle and post- arthritic changes to the left ankle status post left ankle surgery. These findings do not support a theory that the Veteran's joint pain in September 2000 warranted an increased rating for gout. Finally, the representative relies on a note that the Veteran was ambulating slowly and hesitatingly with the use of a cane to argue that a higher rating is warranted. The notation by the nurse in the record cited by the representative was that the Veteran was ambulating with the assistance of a cane. There is nothing in that note about gout and no physical examination of the Veteran was conducted. September 2002 Clinical Nurse Specialist. In sum, none of the evidence specifically cited by the Veteran's representative in his February 2003 Statement of Accredited Representative in an Appealed Case, nor the evidence as a whole, establishes that a rating higher than 20 percent should be assigned to the Veteran's disability. A disability of the musculoskeletal system is primarily the inability, due to damage, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Thus, functional loss due to pain and weakness must be considered in evaluating the disability because a part which becomes painful on use must be regarded as seriously disabled. Id. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (disability ratings should reflect the Veteran's functional loss due to fatigability, incoordination, endurance, weakness, and pain). And the rating should reflect the condition of the Veteran during flare-ups. DeLuca v. Brown, supra. An increased rating is not warranted under these criteria. At the Veteran's level of severity, the criteria of Diagnostic Code 5002 is based on flare-ups of a condition that usually asymptomatic. A 20 percent rating is assigned when there are one or two exacerbations in a year with a well-established diagnosis. 38 C.F.R. § 4.71a, Diagnostic Code 5002. As pointed out above, with the exception of 1994, the record does not establish flare-ups of the Veteran's condition more than once per year. Thus, the schedular criteria adequately compensates the Veteran for his functional loss due to pain experienced during exacerbations of his gout condition. In any event, the May 2007 C&P examiner found there were no signs of chronic residuals of gout that cause fatigability, incoordination, endurance or weakness. And that examiner attributed the Veteran's pain to motion with generalized weakness and some atrophy from disuse due to on-going degenerative arthritis and not gout influence. Even the left ankle pain was disassociated with the impairment caused by gout. The examiner concluded that the subjective complaints of pain regarding gout were not supported by the objective findings noted in the examination report. May 2007 C&P Exam. As a result, no increased rating is warranted based on functional loss. Nor does the Veteran qualify for extra-schedular consideration for his service-connected gout disability. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). But if the level of severity and symptomatology of the Veteran's service-connected disability is compared to the established criteria found in the rating schedule, and the schedular rating is adequate, no referral for extra schedular consideration is warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The schedular criteria for gout are based on the frequency of the exacerbations of the diagnosed condition, with higher ratings than the one assigned to the Veteran available if there are constitutional manifestations or residuals of an inactive condition. The Veteran's manifestations of his gout disability (occasional acute pain) fall squarely within the description of the rating criteria for a 20 percent rating. Thus, the rating criteria are adequate for evaluating his gout disability. The Board notes that when schedular criteria are adequate, there is no need to consider whether the Veteran's disability manifests in interference with employment or frequent hospitalization. Thun, 22 Vet. App. 115. Nevertheless, since there are many references in the record to the Veteran's inability to work, the Board will address that issue briefly. Not one medical opinion in the record states that the Veteran's gout interfered with his employment. See, e.g., July 1997 Statement of VA Psychiatrist (Veteran has received inpatient psychiatric treatment several times and is currently a regular patient of the mental health clinic; the examiner does not expect him to improve enough to be able to sustain gainful employment in the future); September 2000 Discharge Report (Veteran is unemployable; prognosis is poor due to chronicity of mental illness, a history of poor treatment response, poor coping skills, and multiple suicidal attempts). To the contrary, the May 2007 C&P examiner determined that the Veteran's service-connected gout disability did not interfere with work and that the Veteran quit his job in 1994 due to back pain. The Veteran's disability compensation from the Social Security Administration is not based on his gout disability. Social Security Decision (Veteran is disabled based on disorders of the back, paranoid schizophrenia, and other psychotic disorders). And although the Veteran and his wife make the claim that he was unable to work due to his gout, the record shows that not only was he experiencing back pain when he left his job in 1994, but he had difficulty in remembering things and getting along with other people. October 1996 General Note (wife notes Veteran has forgetful behavior, suicide attempts, changes in behavior, and violence against her); March 1998 Lay Statement by Brother (Veteran was unable to remember how to do simple tasks or interact with other people, and had a tendency to wander away in confusion). Notwithstanding evidence of the Veteran's inability to maintain employment, this record does not establish that the Veteran's gout disability interfered with his employment so as to warrant a referral for an extraschedular evaluation. Finally, the application of the doctrine of reasonable doubt does not change the outcome here. When there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. While there are many statements by the Veteran that he was experiencing exacerbations of gout, the objective medical evidence does not establish that the Veteran had exacerbations as frequently as he claimed. When the credibility of the evidence is considered, the evidence against the claim is much greater than that in favor and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule inapplicable when the preponderance of the evidence is against the claim). II. Duties to notify and to assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159. VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Dingess v. Nicholson, 19 Vet. App. 473 (2006), also held that, as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the January 1994 RO decision that is the basis of this appeal was already decided - and appealed - before the section 5103(a) notice requirements were enacted in November 2000. Where, as here, the section 5103(a) notice was not mandated at the time of the initial RO decision, the failure to provide notice in a timely fashion is not error. Pelegrini at 120. Rather, the appellant has the right to content-complying notice and proper subsequent VA process, which this Veteran has received. This appeal involves an initial disability rating. Once service connection is granted the claim is considered as substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nevertheless, in January 2007, the Veteran was sent notice of the evidence that is necessary to substantiate a disability rating and the Veteran responded to that notice that he had no additional evidence to submit. VA also has a duty to assist a claimant in obtaining evidence to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA met its duty to assist the Veteran by obtaining his VA treatment records and his Social Security Administration records, by providing him with an opportunity to present his own and his wife's testimony before a hearing officer at the RO, and by conducting C&P examinations. ORDER An initial disability rating in excess of 20 percent for gout is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs