Citation Nr: 1124149 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 10-35 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a rating in excess of 20 percent for gout. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from December 1985 to December 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A hearing before the undersigned Veterans Law Judge was held at the RO in November 2010 (i.e. a video hearing). The hearing transcript has been associated with the claims file. FINDING OF FACT The Veteran's gout results in definite, but not severe, impairment of health and functioning. CONCLUSION OF LAW The criteria for a 40 percent rating, but no higher, for gout have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, DC 5017 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by letters dated in August and November 2009. Additionally, VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise. Examinations were provided which are adequate for adjudicative purposes: the examiners elicited medical histories and conducted all appropriate testing, and the Veteran has not contended that an examination was inadequate or that his condition has changed (i.e. worsened) since the 2010 examination was conducted. The Board acknowledges that the 2009 examiner did not review the claims file. However, the examiner did elicit a medical history from the Veteran, which was consistent with that contained in the claims folder; hence, consideration of the current disability status was made in view of the Veteran's medical history, as required by 38 C.F.R. §§ 4.1 and 4.2. As this matter is a claim of increase rather than of service connection, and as the Veteran provided a medical history which was an adequate substitute for a review of the medical record, the Board finds that the 2009 examination was adequate for rating purposes. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating The Veteran seeks a higher rating his gout. He has reported that he has gout attacks which result in decreased mobility and pain in the toes, ankles, knees, and hands and which require the use of medication for resolution. He has estimated that he has moderate flare-ups every one to two weeks, each lasting approximately two to three hours, and severe flare-ups two to three times a month which leave him bed- (or couch) ridden. The Veteran has indicated that the attacks are caused by moderate to heavy work and result in occupational impairment due to decreased mobility and the need to cancel appointments with clients. See September 2009 statement; November 2010 hearing transcript. The Veteran has submitted statements from people who know him who report their observations that the Veteran's gout flare-ups result in occupational and functional impairment. The Veteran's roommate has reported that the Veteran was on bedrest for one to two days due to flare-ups on at least three occasions between June and September 2009. See September 2009 and March 2010 lay statements. 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. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 38 C.F.R. § 4.14. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's gout is rated at 20 percent under Diagnostic Code (DC) 5017. Under this diagnostic code, gout is rated under the criteria for evaluating rheumatoid arthritis under DC 5002. DC 5002 assigns various ratings based on whether rheumatoid arthritis is an active process or is manifested by chronic residuals. The ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. The higher evaluation will be assigned. When rating rheumatoid arthritis as an active process, DC 5002 provides that a 20 percent rating is assigned for 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 3 or more times a year. A 60 percent rating is assigned for less than the criteria for 100 percent, but with 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. Finally, a 100 percent rating is assigned for constitutional manifestations associated with active joint involvement that is totally incapacitating. When rating rheumatoid arthritis as chronic residuals, DC 5002 provides that the residuals, such as limitation of motion or ankylosis, are to be 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A January 2009 VA treatment record reflects the Veteran's history of "no problems"; he indicated that he was "doing fine" and denied any recent flare-ups of his gout. A September 2009 VA treatment record reflects the Veteran's history of gout flare ups in the last few months, to include his worst attack of gout yet. His daily medication was subsequently changed, and he was provided Indocin for flare ups. See November 2009 and January 2010 VA treatment records. A September 2009 VA examination record reflects the Veteran's history of weakness, stiffness, swelling, giving way, lack of endurance, tenderness, and pain. He also reported flare-ups as often as three times a week, each lasting for two days, which resulted in pain and limitation of motion. The Veteran indicated that he had occupational impairment during flare-ups due to the pain and reduced motion. He indicated that his flare-ups sometimes resulted in immobility. The Veteran explained that the flare-ups were precipitated by physical activity and stress. Examination revealed normal gait and posture. Leg length was symmetric, and examination of the feet did not reveal any signs of abnormal weight-bearing or breakdown, callosities, or unusual shoe-wear pattern. There was pain in the first digit of the bilateral foot. Examination of the ankle demonstrated no deformity, ankylosis, edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. Range of motion testing revealed normal range of motion of the ankles, to include after repetition. There was no additional loss of motion after repetition, but there was additional pain. X-ray images of the ankles were normal, and a uric acid test was normal. The examiner diagnosed the Veteran with gout in remission. An April 2010 VA examination record reflects the Veteran's history of increased flare ups of gout which generally involved the ankles and knees and occasionally (approximately one to two/month) involved the wrists and elbows. The Veteran reported that the flare-ups were prostrating in nature; resulted in increased pain, swelling, and tingling in the knees and ankles; and required the use of Indocin to resolve the pain. The Veteran indicated that the flare ups were caused by stress and prolonged walking and running. The Veteran reported that he was able to do all activities of self-care and housework but unable to do any heavy lifting or garden tilling. The Veteran reported that the gout also resulted in occupational impairment because during a flare-up, he had to miss appointments with clients and not work. He explained that his job required him to use a ladder and work with his hands which he could not do during a flare-up. The Veteran indicated that because of the missed appointments, some of his potential clients had used another company. Examination revealed normal posture, gait, strength, sensation, and reflexes. Examination of the elbows revealed tenderness on the medial epicondyle on the left elbow but no other pain or tenderness. The left elbow had flexion to 135 degrees with pain beginning at 110 degrees, extension to 0 degrees without pain, supination to 75 degrees without pain, and pronation to 80 degrees without pain. The right elbow had flexion to 145 degrees without pain, extension to 0 degrees without pain, supination to 85 degrees without pain, and pronation to 80 degrees without pain. Examination of the wrists revealed no swelling and negative Tinel's and Phalen's signs. The left wrist had flexion to 50 degrees with pain throughout, extension to 45 degrees with pain throughout, radial deviation to 20 degrees without pain, and ulnar deviation to 45 degrees without pain. The right wrist had flexion to 80 degrees without pain, extension to 60 degrees without pain, radial deviation to 20 degrees without pain, and ulnar deviation to 30 degrees without pain. Examination of the hands and fingers revealed metacarpophalageal flexion to 90 degrees on all fingers, proximate interphalangeal flexion to 110 degrees of all fingers, and distal interphalangeal flexion to 70 degrees of all fingers. Extension was zero for all fingers. All ranges of motion were performed without pain. The Veteran was able to reach the proximal crease with his fingertips bilaterally, and he could oppose his thumb and all fingers without gapping. There was no deformity, swelling, or erythema. Examination of the knees revealed extension to 0 degrees without pain and flexion to 130 degrees with pain beginning at 100 degrees bilaterally. The knees were stable to valgus, varus, anterior/posterior drawer, and McMurray testing. There was pain to palpation along the suprapatellar portion of the tendon bilaterally. There was mild crepitus with patellar compression bilaterally. Examination of the ankles revealed dorsiflexion to 20 degrees and plantarflexion to 45 degrees bilaterally with pain throughout. There as tenderness in the left ankle from the medial to lateral malleolus extending across the front of the ankle along the joint line. There was trace edema in both feet. The ankles were stable to varus, valgus, and anterior/posterior drawer testing. The examiner noted that there was no change in range of motion after repetition. The examiner diagnosed the Veteran with gout. X-ray images revealed minimal osteoarthritis in the knees and ankles and normal findings for the elbows and wrists except for open reduction internal fixation of remote well-healed left distal radial fracture and possible old unchanged distal radial fracture. There was no evidence of gouty changes in the joints. After consideration of the evidence, particularly the evidence of recurrent exacerbations resulting in functional and occupational impairment and the use of daily medication, the Board finds the Veteran's gout warrants a rating of 40 percent under DC 5002. The Board finds a rating in excess of 40 percent is not warranted, however. Initially, the Board finds that a rating in excess of 40 percent is not warranted under DC 5002. The evidence reflects no findings or histories of weight loss or anemia. The Board acknowledges that the Veteran has reported the occurrence of incapacitating exacerbations several times a month. The evidence, to include the Veteran's histories, does not suggest that these flare-ups result in "severe" impairment of health, however, as is required for a 60 percent rating. In this case, the evidence indicates that the flare-ups generally subside in fewer than 12 hours, are generally controlled by medication, do not preclude the Veteran from maintaining a job, and do not require frequent medical treatment, which the Board finds approximates a degree of impairment less than "severe." The Board has also considered whether a rating in excess of 40 percent is warranted by rating the condition based on the residual limitation of motion. In this case, the evidence does not suggest the existence of any residual save limitation of motion of the joints. The Veteran's range of motion in the ankles, knees, elbows, ankles, and fingers is too significant to warrant a compensable rating based on limitation of motion in any of the joints. Moreover, range of motion is too significant in each joint to warrant even a noncompensable rating save in the left elbow due to reduced flexion. Thus, the Board finds a rating in excess of 40 percent is not warranted based on any residual symptoms of the Veteran's gout. In sum, the Board finds a 40 percent rating, but no higher, is warranted for the Veteran's gout. The Board has considered whether extraschedular consideration is warranted based on the Veteran's history of occupational impairment. The discussion above reflects that the symptoms of the Veteran's gout are contemplated by the applicable rating criteria. The competent medical evidence of record shows that his disabilities are primarily manifested by flare-ups with limitation of function and occupation, and the effects of this impairment were explicitly taken into account and considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, the Board finds the effects of the Veteran's gout has been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A 40 percent rating, but no higher, for gout is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs