Citation Nr: 1303093 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-33 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent prior to October 6, 2009, and in excess of 40 percent thereafter for service-connected gout. 2. Entitlement to service connection for an acquired psychiatric disorder manifested by insomnia, stress, and depression, claimed as secondary to service-connected gout. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to April 1993. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's August 2007 claim for an increased disability rating for service-connected gout was denied in an October 2007 rating decision. The Veteran disagreed and perfected an appeal. In a July 2010 rating decision, the RO granted an evaluation of 40 percent for the Veteran's gout disability. The Veteran's July 2009 claim for an acquired psychiatric disorder to include as secondary to service-connected gout was denied in a September 2009 rating decision. The Veteran disagreed and perfected an appeal. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the Veteran's VA claims folder. For reasons explained in greater detail below, the Board refers the issue of entitlement to service connection for degenerative arthritis to the RO for appropriate action, to include the initial adjudication. The issue of entitlement to service connection for an acquired psychiatric disorder manifested by insomnia, stress, and depression, claimed as secondary to service-connected gout is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected gout disability is manifested by multiple joint pain that is exacerbated for periods of three days several times per year, prevents long periods of standing, impacts his ability to do his job duties and affects his ability to sleep. 2. From January 1, 2007, to November 10, 2011, the Veteran was absent from his employment for 567.15 hours, because of his service-connected gout disability. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability rating and no higher have been met from January 1, 2007, to October 5, 2009, for service-connected gout disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.45, 4.71a, Diagnostic Codes 5017 and 5002 (2012). 2. The criteria for a disability rating in excess of 40 percent from October 6, 2009, for service-connected gout have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.45, 4.71a, Diagnostic Codes 5017 and 5002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks disability ratings higher than VA has evaluated for his service-connected gout disability. The Board will briefly address preliminary matters and then render a decision on the claim. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran was informed in an August 2007 letter from the RO of the evidence needed to substantiate a claim for an increased disability rating. The letter also informed the Veteran of the steps VA would take to assist him in developing his claims, and the Veteran was told how VA determines a disability rating and an effective date. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of notices provided. Shinseki v. Sanders, 556 U.S. 396 (2009) (burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency determination.). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record shows that the RO has obtained the Veteran's service medical records and VA treatment records. The record reveals that the Veteran has been provided with medical examinations pertaining to his service-connected gout disabilities. The Veteran testified at a video hearing before the undersigned. The issues on appeal were explained and other relevant evidence for the Veteran's claim was identified. See hearing transcript at pages 3 and 13. The Veteran has not contended that he was prejudiced in any way by the hearing. The Veteran contends that his gout is worse than VA has evaluated. A short procedural history is in order to clarify the issue on appeal. Preliminary Matters Effective date The Veteran was originally service-connected for gout in his right knee as 20 percent disabling effective since April 1993. After the Veteran's August 2007 claim for an increased disability rating, the RO provided rating decisions that focused on specific joints until the July 2010 rating decision which evaluated the disability under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5017 [Gout] and 5002 [Arthritis, rheumatoid (atrophic) as an active process]. In essence, the July 2010 rating decision was the first rating decision that correctly viewed the Veteran's disability as a multiple joint disability rather than an individual joint disability. Thus, the Board will view it as a rating of the Veteran's August 2007 claim and, therefore, the potential effective date for the claim on appeal is based on receipt of the August 2007 claim. When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o) (2012). Degenerative arthritis The medical evidence includes a January 2010 VA examination report wherein the examiner diagnosed the Veteran with gouty arthritis; degenerative arthritis of the right and left wrists; degenerative arthritis of the right and left knees; and, degenerative arthritis of the right and left ankles. As noted, the Veteran was service-connected with gout of the right knee and is currently evaluated for gout as a multiple joint disability. Although there is medical evidence of degenerative arthritis, the Board observes that the Veteran is not service-connected for degenerative arthritis. As indicated in the discussion of the January 2010 examination report, there may or may not be a causal relationship between the Veteran's gout disability and the diagnosed degenerative arthritis in multiple joints. Thus, the Board refers the issues of entitlement to service connection for degenerative arthritis to VA for appropriate action. In making the referral, the Board wishes to inform the Veteran that if he is granted service connection for any of the joints affected by degenerative arthritis, it may not necessarily result in higher compensation. As noted above, his gout is rated under the active process criteria found in Diagnostic Code 5002. The Note to Diagnostic Code 5002 states that "ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis," and that a rating official assigns the higher rating. Analysis Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disabilities in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). The Veteran's disability is rated as 20 percent disabling prior to October 6, 2009, and 40 percent disabling thereafter under the criteria found at 38 C.F.R. § 4.71a, Diagnostic Codes 5017 [Gout] and 5002 [Arthritis, rheumatoid (atrophic) as an active process]. Diagnostic Code 5017 merely directs a rating official to the rating criteria found at Diagnostic Code 5002. Because the medical evidence shows that the Veteran has gout at multiple joints, the Board finds that Diagnostic Code 5002 is the most appropriate diagnostic code for rating purposes. Neither the Veteran nor his representative has indicated another diagnostic code is more appropriate. Diagnostic Code 5002 provides a 20 percent disability rating with evidence of gout producing one or two exacerbations a year in a well-established diagnosis. Evidence of symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year is required for a 40 percent disability rating. A 60 percent disability rating is provided when evidence shows less than 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 disability rating is provided with evidence of constitutional manifestations associated with active joint involvement, totally incapacitating. The medical evidence includes a September 2007 VA examiner's opinion that the Veteran has gout that affected his bilateral knees, left wrist and bilateral elbows at the time. The examiner reported that an aggravating factor of the Veteran's gout was prolonged standing. Flare-ups of the Veteran's gout resulted in movement that was markedly restricted by pain and impaired the Veteran's ability to do his job. The Veteran reported having to request "multiple unscheduled work breaks," and that as a result of his gout, the Veteran "lost 5 or 6 days each of the past few months." The Veteran denied having weight loss or chills. An October 2007 VA primary care report noted the Veteran's complaint of pain and swelling of his right foot that required him to use crutches. An October 2007 VA treatment report states that the Veteran had experienced "several weeks of ongoing swelling and pain in the right foot," and use of crutches for 3 weeks due to pain. The assessment was "gouty arthritis" of the right foot and ankle. The examiner noted that the Veteran had a long history of gouty flare-ups that occur about 2 times each month, according to the Veteran. An October 2008 VA emergency room note reported that the Veteran complained of pain and swelling in the left knee for approximately 2 weeks. A December 2008 report notes that the Veteran had a "gout attack" in his left great toe that persisted for about 22 days and presented pain that the Veteran rated as 8 out of 10. An August 2009 VA examination report notes that the Veteran continues to have flare-ups of joints and in the year prior to the examination, the Veteran's hands and feet were mainly affected. The Veteran reported having a severe flare-up approximately one time per week and that the flare-ups usually caused the Veteran to miss work for "a day or 2 at a time." The examiner noted that the gout attacks had a significant effect on the Veteran's ability to work and that he missed 4 to 6 days a month because of the attacks. A January 2010 VA examination report also describes the nature of the attacks as being related to the Veteran's service-connected gout and noted that gout can affect numerous joints at a time or separately. At the time of the Veteran's November 2011 testimony, he was experiencing painful gout in his left ankle and he testified that he had missed work the day before. See hearing transcript at page 5. The Veteran testified that he had to use crutches when his gout gets bad, and that he cannot do his work when he experiences flare-ups because he has to be on his feet all day. The Veteran testified that he had lost 8 days of work in the previous 2 months and 30 days of work in the previous year. See hearing transcript at page 7. The Veteran testified that he had no edema or weight loss and that the longest period he has lost from work was 3 days. See hearing transcript at pages 8-9. The Veteran submitted a letter dated November 10, 2011, from his employer that stated that the Veteran had "been out for a total of 567.15 hours of sick time" since January 1, 2007. The Veteran's supervisor testified that the Veteran "was not able to work a lot, had to leave work and go home a lot, and when he was here, it was minimum that he could do because of lack of rest the night before." The supervisor stated that he had seen the Veteran experiencing pain and swelling in "his knees, feet, ankles and hands," and had seen the Veteran use crutches. As noted above, a 20 percent disability rating is provided with evidence of gout producing one or two exacerbations a year in a well-established diagnosis. Evidence of symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year is required for a 40 percent disability rating. The medical evidence and the evidence provided by the Veteran's employer shows that the Veteran is often incapacitated to the degree where he cannot work because of the pain caused by his service-connected gout. The Board observes that the regulation does not specify a specific duration of exacerbation or flare-ups. In this case, the Veteran's flare-ups appear to last for 2 or 3 days before medications can control the flare-up to the point where the Veteran can go back to work. Given the degree of the pain the Veteran's gout causes and the impairment he suffers because of the gout, the Board finds that the evidence meets the criteria of a 40 percent disability. The Board has considered whether the Veteran is entitled to a disability rating in excess of 40 percent. AB v. Brown, 6 Vet. App. 35 (1993). The evidence, however, does not show 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, nor does it include evidence of constitutional manifestations associated with active joint involvement that is totally incapacitating. The Veteran told examiners and testified under oath that he did not have weight loss, and there is no medical evidence of anemia. Moreover, the Veteran continues to work as he is able and he has not contended that he totally incapacitated by his service-connected gout. In sum, the Board finds that the Veteran's service-connected gout is best described by the 40 percent criteria. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet App. 505 (2007). Moreover, when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). The Veteran's claim was received by VA on August 15, 2007. The earliest evidence of record is the September 2007 VA examination. That examination, however, describes how the Veteran reported having to take "multiple unscheduled work breaks," and how he had lost 5 or 6 days per month because of his gout disability. Moreover, the Veteran's employer and supervisor provided evidence that the Veteran had experienced incapacitating flare-ups prior to the date his claim was received by VA. In sum, the Board finds that the evidence supports a finding that the Veteran is entitled to a 40 percent disability rating effective January 1, 2007. The Board observes that there is no evidence of the Veteran's disability prior to January 1, 2007. Thus, the assigned disability rating is 40 percent disabling from January 1, 2007 and there is no evidence that shows that higher or separate ratings are warranted at any point in time covered by the appeal. The Court of Appeals for Veterans Claims has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran'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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board notes that there is no evidence of hospitalization due to the gout disability, but that there is evidence of interference with employment. The Board finds, however, that the interference with employment was considered as part of the incapacitation of the Veteran caused by his gout and, therefore, to the extent that the gout attacks causes interference with employment, it is contemplated by the rating criteria. Accordingly, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a 40 percent disability rating and no higher, for service-connected gout is granted from January 1, 2007, to October 5, 2009. Entitlement to a disability rating in excess of 40 percent from October 6, 2009, for service-connected gout is denied. REMAND The Veteran testified that he has sleeping problems and depression because of the pain and disability associated with his service-connected gout. See hearing transcript at page 11. His wife submitted a statement received by the Board in December 2011 with a waiver for the agency of original jurisdiction's first consideration that included how the gout has affected her husband's ability to interact with the family, perform household chores and provide for the family. In her opinion, the limitations the gout disability presents cause him to be depressed. She learned of the depression from the Veteran's statements and by observing the Veteran during the marriage. While there is no evidence that either the Veteran or his wife have the competency to diagnose depression or attribute such a psychiatric disorder to a specific cause, the Board observes that depression symptoms are well within the scope of lay witnesses and as such both are competent to report what they observe. A disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Moreover, under McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a VA medical examination in service connection claims when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In view of the elements of secondary service connection, the Board finds that in this case the requirements of McLendon have been met by the lay evidence of the Veteran's depression symptoms, the record evidence of service-connected gout disability and its symptom of pain, the Veteran's testimony of how the gout affects him and the Veteran's wife's statement regarding the impact gout has on the Veteran. The Board remands the claim for an examination to determine whether the Veteran manifests a diagnosable acquired psychiatric disorder and if so, whether it is at least as likely as not that such disorder is related to his service-connected gout. The Veteran should also be informed of the evidence needed to substantiate a claim for secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran of the evidence needed to substantiate a claim for secondary service connection. 2. Ensure all VA treatment records pertaining to the Veteran are included in the Veteran's VA claims folder. 3. Schedule the Veteran for an examination by an appropriate VA psychiatric examiner who should review the Veteran's VA claims folder prior to the examination. The examiner should provide a description of any diagnosed psychiatric disorder manifested by the Veteran. The examiner should also provide an opinion whether it is at least as likely as not that any diagnosed psychiatric disorder manifested by the Veteran was proximately caused by or proximately aggravated by any disease or injury of service origin, or a service-connected disability to include service-connected gout. The examiner's opinion should be supported by rationale and reference to appropriate medical literature and clinical evidence. 4. Ensure completion of the foregoing, and then adjudicate the Veteran's claim. If the benefit sought is denied, prepare a supplemental statement of the case and, if otherwise in order, return the Veteran's VA claims folder to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs