Citation Nr: 1002240 Decision Date: 01/13/10 Archive Date: 01/22/10 DOCKET NO. 05-28 340A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. What evaluation is warranted for residuals of pulmonary sequestrations, status post lobectomy, from September 27, 2002? 2. What evaluation is warranted for gout of the knees, right ankle, and right wrist from September 27, 2002 to January 27, 2005? 3. What evaluation is warranted for gout of the knees, right ankle, and right wrist from January 28, 2005? 4. What evaluation is warranted for anemia from September 27, 2002? REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs ATTORNEY FOR THE BOARD B.B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to September 2002. He also had service with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The claims were certified for appeal by the Baltimore, Maryland RO. In January 2008, the claims were remanded for further development. The issues regarding what evaluation is warranted for residuals of pulmonary sequestrations, status post lobectomy, from September 27, 2002, what evaluation is warranted for gout of the knees, right ankle, and right wrist from January 28, 2005, and what evaluation is warranted for anemia from September 27, 2002 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From September 27, 2002 to January 27, 2005, gout of the knees, right ankle, and right wrist was not productive of a definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. CONCLUSION OF LAW From September 27, 2002 to January 27, 2005, gout of the knees, right ankle, and right wrist did not meet the criteria for an evaluation in excess of 20 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5002, 5017 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Board begins by noting that as service connection, an initial rating, and an effective date have been assigned for the claim, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations. The claimant was provided the opportunity to present pertinent evidence. In sum, there is no evidence of any VA error in assisting the appellant that reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Analysis The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service treatment records, and VA medical records. Although this Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application is received within one year from that date. 38 U.S.C.A. § 5110(b)(2) (West 2002). Where there is a question as to which of the 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. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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. Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.71a, gout is rated under Diagnostic Code 5002. 38 C.F.R. § 4.71a, Diagnostic Code 5017. Under that Code a 20 percent rating is warranted where there are one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times per year. In a May 2003 rating decision, the Veteran's claim of entitlement to service connection for gout of the bilateral knees, right ankle, and right wrist was granted. The disorder was assigned a noncompensable evaluation. In August 2005, the evaluation was raised to 20 percent, effective from September 27, 2002 to January 27, 2005. A noncompensable rating was reassigned effective January 28, 2005. At an April 2003 VA examination, the Veteran reported having fluid removed from his joints on at least six occasions. He noted that when during episodes of gout, he had severe discomfort and could not walk easily. A physical examination found upper and lower extremity joints to be normal without swelling or deformity. The Veteran was not taking any medication for gout at that time. No evidence of arthritis was found. Range of motion was normal. At a primary care appointment in April 2004, the Veteran reported having approximately four to six gouty spells per year. His symptoms reportedly were cured within three days by medication. A musculoskeletal examination was normal, and there was no sign of redness or swollen joints. The Board finds that a rating in excess of 20 percent is not warranted for the period from September 27, 2002 to January 27, 2005. The Veteran reported four to six gouty spells per year. These resolved with medication. No symptom combinations productive of definite impairment of health or incapacitating exacerbations occurring three or more times per year were ever demonstrated. While the Veteran reported gouty spells four to six times per year, there is no evidence that these spells were incapacitating. Rather, the Veteran reported that he would take his medication, and after three days his flare-ups would recede. For these reasons, the Board finds that a rating in excess of 20 percent from September 27, 2002 to January 27, 2005, is not warranted. The Veteran's disability picture is not so unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). Here, as discussed above, the rating criteria for gout reasonably describe the Veteran's disability level and symptomatology. Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations are adequate, and no referral for extraschedular evaluations is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER A rating in excess of 20 percent for gout of the knees, right ankle, and right wrist from September 27, 2002 to January 27, 2005 is denied. REMAND In the January 2008 remand, the Board instructed the AMC to schedule the Veteran for two examinations. One examination was to be scheduled to determine the severity of the Veteran's pulmonary sequestrations, status post lobectomy. The other was to be scheduled to determine the current nature and severity of his anemia. Another remand directive instructed the AMC to provide the Veteran with adequate notice. The AMC used an old address when mailing notice to the Veteran. After realizing its mistake, the AMC corrected the address. The Veteran was sent notice informing him that an examination was being scheduled for him, but he would be sent separate notice informing him of the date of his appointment directly from the medical center. The AMC specifically requested that the medical center provide it with a copy of the letter in the event that the Veteran did not arrive at his appointment, as directed in the Board's remand. The Veteran failed to appear for his examination, but a copy of the VA Medical Center's notice is not included in the claims file. Hence, further development is required. The Veteran also has repeatedly requested that any VA examination appointments be made in Wilmington, Delaware because of the proximity of that facility to his place of employment. He has specifically told VA that he cannot attend appointments in Baltimore. The AMC, however, scheduled the Veteran for an appointment in Baltimore. As there is no explanation why the examination was not conducted in Wilmington, a facility which also is considerably closer to the appellant's current mailing address, the Veteran should be afforded another opportunity for an examination. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Veteran's last examination for gout in May 2006 was inadequate. While the Veteran reported that he took indomethacin once or twice a week for his gout to help him mobilize, but there was no discussion of frequencies of flare-ups, which is necessary information in order to determine an accurate rating. Thus, a new examination is required. Accordingly, the case is REMANDED for the following action: 1. The AMC should request that the Veteran submit any evidence in his possession documenting any flare-ups of his gout (e.g., medical records, prescription information, employment records). 2. Thereafter, the AMC should schedule the Veteran for an appropriate VA medical examination in Wilmington, Delaware to determine the severity of gout involving his knees, right ankle, and right wrist. The claims file must be provided for the examiner for review. The examiner must discuss the frequency and duration of flare-ups, any incapacitation during flare-ups, and any restriction on employment or daily activities. All tests, including range of motion tests, should be completed in accordance with the latest AMIE worksheets for rating disorders of the musculoskeletal system. All findings should be fully documented and explained in detail. The examiner is to render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the knees, right ankle, and right wrist. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner is to address whether, and to what extent, the Veteran experiences any functional loss due to pain and/or any of the other symptoms during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner is to identify all impairments affecting the knees, right ankle, and right wrist. The examiner should indicate whether arthritis is present, and whether there is recurrent subluxation or lateral instability of the knees. If instability of the knees is present the degree of that impairment should be classified as either "slight," "moderate," or "severe." Finally, the examiner is to classify the degree to which gout of the knees, right ankle, and right wrist interferes with the Veteran's ability to work. 3. The AMC should schedule the Veteran for an appropriate VA medical examination in Wilmington, Delaware to determine the severity of his pulmonary sequestration, status post lobectomy. The claims file must be provided for the examiner for review. In accordance with the latest AMIE worksheets for rating respiratory diseases, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any pertinent disability. The examiner must conduct pulmonary function tests that include FEV- 1, FVC, and DLCO(SB) rations as well as the maximum oxygen consumption (measured in ml/kg/min); values for each must be obtained and reported, or the examiner must indicate why a particular test was not clinically indicated. Further, after a review of the relevant outpatient treatment records, the examiner must indicate whether the Veteran requires outpatient oxygen therapy, and address whether he has pulmonary hypertension, cardiac pathology, and/or any episodes of acute respiratory failure which are related to his pulmonary sequestration, status post lobectomy. A complete rationale for any opinions expressed must be provided. 4. The AMC should also make arrangements for the Veteran to be afforded a VA examination in Wilmington, Delaware to determine the current nature and severity of his service-connected anemia. The claims folder must be made available to and reviewed by the examiner prior to the completion of the examination. The examination must include any diagnostic tests or studies that are deemed necessary for an accurate assessment, specifically to include blood studies to determine the appellant's current hemoglobin and hematocrit levels. A complete description of all symptomatology associated with the disabilities should be provided. 5. The AMC is to advise the Veteran that it is his responsibility to report for any scheduled VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for an ordered examination, documentation should be obtained and added to the claims folder which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Thereafter, the RO should readjudicate the claims of what evaluation is warranted for residuals of pulmonary sequestrations, status post lobectomy, from September 27, 2002; what evaluation is warranted for gout of the knees, right ankle, and right wrist from January 28, 2005; and what evaluation is warranted for anemia from September 27, 2002. If any claim is denied, a supplemental statement of the case must be issued, and the appellant offered an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs