Citation Nr: 1213232 Decision Date: 04/11/12 Archive Date: 04/19/12 DOCKET NO. 09-20 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial compensable disability rating for left foot gout and degenerative changes. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from March 2000 to June 2008. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. The September 2008 decision at issue in this appeal granted the Veteran's claims of service connection for left foot gout and degenerative changes and hiatal hernia with GERD, assigning zero percent (i.e., noncompensable) ratings for both disabilities retroactively effective from June 30, 2008, the day after he separated from service and returned to life as a civilian. His appeal was certified to the Board for higher initial ratings concerning these two disabilities. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals his initial rating, VA must consider whether to "stage" his rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). In an April 2011 decision, the Board granted an initial rating of 10 percent for hiatal hernia with GERD. The remaining issue for left foot gout and degenerative changes required additional development and consideration, and was remanded to the RO via the Appeals Management Center (AMC). Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Since the award of service connection, the Veteran's left foot gout with degenerative changes has not manifested as an active process or caused any associated limitation of motion in his left ankle; x-ray confirmation of degenerative changes in the left ankle has been shown that at least as likely as not results in painful motion. CONCLUSION OF LAW The criteria have been met for a 10 percent initial rating for the left foot gout and degenerative changes. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5002, 5003, 5017, 5271 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If it was not, this timing error can be effectively "cured" by VA providing any necessary VCAA notice and readjudicating the claim-such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Supreme Court has clarified that VCAA notice errors are not presumptively prejudicial, rather, should be determined based on the facts of each individual case. Moreover, as the pleading party, a veteran, not VA, has this burden of proof for showing there is a VCAA notice error in timing or content and, furthermore, that it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in March 2008. That letter informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence. Notably, his claim arose in the context of him trying to establish his underlying entitlement to service connection, which was granted. He is now requesting a higher initial rating. In Dingess, and in Goodwin v. Peake, 22 Vet. App. 128 (2008), the United States Court of Appeals for Veterans Claims (Court) held that in cases, as here, where service connection has been granted and an initial disability rating and effective date 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 initial intended purpose of the notice has been served. Instead of issuing an additional VCAA notice letter in this situation concerning a "downstream" issue, such as the initial rating assigned for the disability, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a SOC if the disagreement is not resolved. And this has been done; the Veteran has received both an SOC and SSOC discussing the downstream disability rating element of this claim, citing the applicable statutes and regulations and discussing why a higher rating was not assigned. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of this claim, which is obtainable, and therefore appellate review may proceed on the merits. The RO obtained his service treatment records, VA outpatient treatment records, and arranged for VA compensation examinations in March 2008, May 2010, and May 2011 to assess the severity of his left foot gout with degenerative changes disability. The record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2011). Here, the most recent VA compensation examination for this disability was in May 2011, in response to the Board's April 2011 remand directives, so relatively recently. Moreover, the report of that evaluation contains all the findings needed to properly evaluate this disability. 38 C.F.R. § 4.2 (2011). A remand for another examination is not necessary. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (indicating the requirement of a "contemporaneous" examination does not require a new examination based upon the mere passage of time). And in having the Veteran undergo that May 2011 VA examination to reassess the severity of his gout, there was compliance with this April 2011 remand directive because the report of the examination contains responses to the questions the Board posed in that remand and provided the information needed to properly assess the severity of this disability in relation to the applicable rating criteria. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and that appellate review of the claim may proceed. II. Entitlement to an Initial Compensable Rating for Left Foot Gout with Degenerative Changes Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2011). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson, 12 Vet. App. at 126. The Veteran currently has a noncompensable (i.e., zero percent) disability rating for his left foot gout with degenerative changes, rated under Diagnostic Code 5017 for gout. See 38 C.F.R. § 4.71a (2011). Pursuant to this diagnostic code, gout will be rated under Diagnostic Code 5002 for "rheumatoid arthritis." And under this 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 Diagnostic Code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, and 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. Id. Limitation of motion of the ankle is rated under Diagnostic Code 5271. Under this diagnostic code, a 10 percent evaluation is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Words such as "moderate" and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2011). However, the Rating Schedule provides some guidance by defining full range of motion of the ankle as from zero to 20 degrees of dorsiflexion and from zero to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II (2011). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2011). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Additionally, degenerative arthritis is rated under Diagnostic Code 5003. The diagnostic code, in turn, provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. According to Diagnostic Code 5003, when limitation of motion would be noncompensable, i.e., zero percent, under a limitation-of-motion code, but there is at least some limitation of motion, VA assigns a 10 percent rating for each major joint so affected, to be combined, not added. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis and other conditions, which is established by x-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Diagnostic Code 5003 further indicates that a 10 percent rating is assignable with x-ray involvement of 2 or more major joints or 2 or more minor joint groups. A higher 20 percent rating under Diagnostic Code 5003 requires this with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. According to 38 C.F.R. § 4.45(f), for the purpose of rating disability from arthritis, the ankle is considered a major joint. The relevant evidence of record since the award of service connection includes VA treatment records dating from February 2006 to May 2011. These VA treatment records show the Veteran's continued treatment for his left foot gout and degenerative arthritis and other disorders. Specifically, a November 2009 VA treatment record noted the Veteran's reported history of between 1-2 gout attacks per year, with the last attack occurring in October 2009. His most recent VA treatment record, dated in May 2011, noted that he has not suffered from a gout attack for over two years. The Veteran has also undergone several VA compensation examinations concerning this claim. In March 2008, in connection with his underlying claim for service connection, the Veteran reported his last gout attack occurred in mid-2006. The May 2010 VA examiner noted the Veteran had not had a gout flare-up since 2008, and had no specific complaints concerning his left foot at that time. Most recently, the May 2011 examiner noted the Veteran has not had a gout flare-up within the past 12 months and, in fact, he noted the 2008 gout flare-up concerned only the Veteran's right elbow. Therefore, it is clear from the record that the Veteran's gout is not in active rheumatoid arthritis processes and, instead, should only be considered for chronic residuals, such as limitation of motion of the affected joint-his left ankle. In this regard, the report of the March 2008 VA examination list range-of-motion findings for the Veteran's left ankle as follows: dorsiflexion from zero to 20 degrees, plantar flexion from zero to 45 degrees, inversion from zero to 30 degrees, and eversion from zero to 20 degrees. This examiner found no evidence of pain, weakness, fatigability or lack of endurance associated with repetitive motion. See DeLuca, 8 Vet. App. at 206. However, the Board does note that x-ray findings found degenerative changes in the tibia talar and talonavicular joints, both of which make up the ankle. This resulted in the examiner's diagnosis of "gouty arthritis." The subsequent May 2010 VA examiner did not provide any range of motion findings of the left ankle, as noted in the Board's April 2011 remand. Therefore, as a consequence of that remand, the Veteran was scheduled for an examination in May 2011. During this examination, the Veteran denied any pain, effusion or disability other than rare episodes of ligamentous instability. He also denied pain and swelling of the left first metatarsophalangeal joint and the left foot. However, the examiner noted the Veteran stated he has some tingling of the first metatarsophalangeal joint. Upon objective physical examination, the left ankle joint looked normal, without visible arthropathy or effusion. His Achilles tendon was intact, non-tender and of normal alignment. The VA examiner listed range of motion findings as follows: dorsiflexion from zero to 20 degrees, plantar flexion from zero to 45 degrees, inversion from zero to 30 degrees, and eversion from zero to 15 degrees. Additionally, there was no apparent pain, loss of motion, weakness, fatigability or loss of coordination during or following repetitions of range of motion testing. DeLuca, 8 Vet. App. at 206. While the March 2008 and May 2011 VA examiners found normal dorsiflexion and plantar flexion in the left ankle, even when considering the additional DeLuca factors, x-ray evidence from March 2008 supports a finding of degenerative arthritis, which, even in the absence of any limitation of motion, would support assigning a 10 percent rating if there is painful motion. See Lichtenfels, 1 Vet. App. at 488 (1991). Although there is no limitation of motion of the left ankle based on the evidence, the Board resolves reasonable doubt in the Veteran's favor as to the existence of some painful motion. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, the Board finds that he is entitled to a 10 percent rating for left foot gout and degenerative changes. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's left foot gout and degenerative changes has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2011). The symptoms of his disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER An initial 10 percent rating is granted for left foot gout with degenerative changes, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs