Citation Nr: 1331471 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-23 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for arthritis of the neck, right shoulder and arm, to include as due to the Veteran's service-connected gout. 2. Entitlement to a rating in excess of 10 percent for service connected gout, right foot, 3. Entitlement to a rating in excess of 10 percent for service connected gout, left foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1978 to March 1979 and from October 1979 to July 1992. This matter came to the Board of Veterans' Appeals (Board) from September 2004 and February 2005 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in November 2010 for further development. A review of the record shows that the RO has complied with all remand instructions regarding issuance of required notices, obtaining Social Security Administration (SSA) records, providing a new examination, and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). In the February 2005 rating decision, the RO denied increased ratings for gout. The Veteran appealed. In June 2009, the Decision Review Officer (DRO) assigned 10 percent disability ratings, effective October 28, 2004. Although increased ratings have been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Arthritis of the neck, right shoulder and arm was not manifested during the Veteran's active duty service or for many years thereafter, nor is arthritis of the neck, right shoulder and arm otherwise related to such service, or proximately due to or caused by her service-connected gout. 2. The Veteran's gout does not result in symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. 3. The Veteran's service-connected gout, right foot is manifested by limitation of motion objectively confirmed by satisfactory evidence of painful motion, but does not result in more than moderate impairment of the foot. 4. The Veteran's service-connected gout, left foot is manifested by limitation of motion objectively confirmed by satisfactory evidence of painful motion, but does not result in more than moderate impairment of the foot. CONCLUSIONS OF LAW 1. Arthritis of the neck, right shoulder and arm was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected gout, right foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a and Codes 5002, 5017, 5284 (2013). 3. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected gout, left foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a and Code 5002, 5017, 5284 (2013). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in March 2004 (arthritis) and November 2004 (gout). The RO provided the appellant with notice in March 2006, May 2008 and December 2010, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the March 2006, May 2008 and December 2010 notices were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claims were subsequently readjudicated in July 2009 and February 2012, supplemental statements of the case, following the provision of notice in March 2006, May 2008 and December 2010. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and VA treatment records, obtained Social Security Administration (SSA) records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony at a Board video conference hearing in August 2010. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and her representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Service Connection One of the issues before the Board involves a claim of entitlement to service connection for arthritis of the neck, shoulder and right arm, to include as due to the Veteran's service-connected gout. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). All theories of entitlement--direct and secondary--must be considered. See Hodge v. West, 155 F.3d 1356, 1362-1363 (Fed. Cir. 1998) (noting that Congress expects the VA "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board finds that service connection on a direct basis is not warranted. Service treatment records are silent for any arthritis of the neck, shoulder and right arm. A health questionnaire for dental treatment signed at various times from August 1983 to May 1990 shows that the Veteran did not check the appropriate box to indicate any arthritis. On separation examination in April 1992, clinical evaluations of the neck and upper extremities were normal. Arthritis was not noted. In her contemporaneous medical history, the Veteran checked the appropriate boxes to deny arthritis and "trick" shoulder. While she did mark the appropriate box to indicate "swollen or painful" joints, upon clarification, she complained only of her knees. In a statement received in July 2008, the Veteran stated being first diagnosed with degenerative arthritis of the shoulders in 1984 and was prescribed medication for the arthritis. However, as seen above, service treatment records show otherwise. Even assuming for the sake of argument the Veteran did have arthritis as early as 1984, one would expect the Veteran to have reported it in her report of medical history as she had for four other disabilities. The Veteran is certainly competent to testify as to her symptoms, but when given the opportunity in service, she failed to do. Moreover, even trained medical personnel at the time of separation did not find any arthritis and found no abnormalities in her now affected areas. The only abnormality noted was for identifying body marks, scars and tattoos. A VA treatment record shows the first documentation of complaints of pain in the neck and shoulder in February 2004, which is 12 years post service. While not determinative by itself, this lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the one year presumption of service incurrence for arthritis is not warranted. Also, the Veteran had submitted claims for other VA benefits based on other disabilities in September 1996, January 2001, and November 2002. It was not until February 2004 when the Veteran's claim for arthritis in the neck, shoulder and right arm was received. This suggests that the Veteran did not believe she had arthritis in the neck, shoulder and right arm related to service until many years after service as the Board believes it reasonable to assume that she would have included an arthritis claim with her other earlier claims. In sum, there is no supporting evidence to suggest any continuity of arthritis from service to show a nexus to service. A December 2004 VA examination shows mild degenerative joint disease of the right shoulder, secondary to aging. A September 2008 VA examination report shows an x-ray impression of mild degenerative changes seen in the acromioclavicular joint bilaterally. The Veteran was afforded a VA examination in January 2009. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner noted that the gout examinations did not show an uptake in the neck, shoulder and right arm or hand. Thus, a medical opinion could not be reached without resorting to speculation. In November 2010, the Board found that the April 2009 examination report was inadequate for several reasons. The Board remanded the claim in November 2010 for additional development. The Veteran was afforded another VA examination in December 2010. The Veteran reported a fall in 1982 that injured her jaws and led to the development of pain in her right shoulder. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner stated that the neck and right shoulder disabilities are not caused by or a result of neither military service nor service connected gout. The examiner explained that the history complaints started late after the fall in service. He noted that x-ray changes that are age related and not typical of a fall. The VA medical opinion clearly weighs against the claim. There are no competent medical evidence to the contrary. Overall, service connection on a direct basis is not warranted. Service connection on a secondary basis is also not warranted. When the Veteran was afforded a VA examination in January 2009, the examiner noted that it is possible to have gout in one area of the body without affecting other joints and that it is known to cause degenerative joint disease (DJD). He stated that to conclusively prove that the findings on the exam in are due to gout, either aspiration of the joints for gout crystals or elevated uric acid in the blood at the same time the joints are tender and swollen and relieved by non-steroidal anti-inflammatory drug (NSAIDS) may one conclude that the DJD is caused by or a result of gout. In November 2010, the Board found that the April 2009 examination report was inadequate for several reasons. Regarding secondary service connection, the examiner raised the possibility that DJD was caused by gout and suggested further testing would be necessary for a final determination in that regard. Consequently, the Board remanded the claim for additional development. The Veteran was afforded another VA examination in December 2010. It was noted that the Veteran stated that tin 1982, she developed right shoulder pain after a fall that injured her jaw. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner stated that the neck and right shoulder disabilities are not caused by or a result of neither military service or service connected gout. The examiner explained that the history complaints started late after the fall in service. He noted that x-ray changes that age related and not typical of a fall. Thus, service connection on a secondary basis is not warranted. There are no competent medical opinions to the contrary. The Board acknowledges the Veteran's assertions that her arthritis is not age related. While the Veteran is competent to provide testimony regarding her symptoms, she is not competent to provide a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's service connection claim. Increased Ratings The present appeal also involves the Veteran's claim that the severity of her service-connected gout, right foot and left foot, warrant higher disability ratings. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's gout is currently rated as 20 percent disabling under Diagnostic Code 5017. Under this diagnostic code, gout is rated under the criteria for evaluating rheumatoid arthritis under Diagnostic Code 5002. Under Code 5002, a 20 percent evaluation is warranted where there are one or two exacerbations a year in a well- established diagnosis. A 40 percent evaluation is warranted for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent evaluation applies where the evidence demonstrates symptomatology 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 evaluation is warranted for constitutional manifestations associated with active joint involvement, totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Diagnostic Code 5002 further provides that chronic 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 diagnostic code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. A note to Diagnostic Code 5002 states that ratings for an active process will not be combined with ratings for limitation of motion or ankylosis. Assign the higher evaluation. A foot disorder may also be rated under Diagnostic Code 5284. Under that diagnostic code, a 10 percent rating is warranted for an injury which is moderate in degree. A 20 percent rating is warranted for a moderately severe injury. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. February 2004 and June 2004 VA treatment records show pain that was burning in nature in her feet. A December 2004 VA examination provides that there is questionable history of gout. The examiner did not see any evidence on examination of the feet or any evidence of joint inflammation. He noted that complaints related to gout are basically paresthesias or burning sensation in bilateral plantar surface of the feet. It was noted that the Veteran had no history of joint inflammation that she can recall specifically of the first metatarsophalangeal joint or any other joints. So, he could not comment on the fact whether her symptoms are truly related to gout. When the Veteran was afforded a VA examination in October 2008, she reported pain bilaterally on the heels and toes while standing and walking. She was able to stand for 15 to 30 minutes and unable to walk more than a few yards. There was objective evidence of painful motion. On the left foot, end range of motion of first mtp joint, 70 degrees of passive dorsiflexion of 1st mtp joint. On the right foot, end range of motion of hallux dorsiflexion and 70 degrees of passive dorsiflexion. There was objective evidence of swelling and tenderness. There was no objective evidence of instability, weakness or other. There was no evidence of abnormal weight bearing. There is also no evidence of malunion or non union of the tarsal or metatarsal bones and there is no muscle atrophy. The symptoms prevented her from doing chores, exercise, shopping, sports, recreation and traveling. There was moderate interference with feeding, bathing, dressing and toileting. There was severe interference with grooming and driving. The examiner ordered a bone scan since he could not determine if joint symptoms are related to gout. November 2008 and June 2009 bone scan results show positive rather intense uptake reproductive exclusively on the vascular and blood pool phases directed towards the midfoot region. There is no variant uptake reproducible on the image that would raise suspicion of infection. It was noted that the findings are equivocal although may reflect an inflammatory arthropathy with involvement of the mid-foot bilaterally that should be addressed on additional imaging studies. In June 2009, a VA treatment shows that the examiner stated that there is usually involvement of inflammatory arthritis and gout in the midfoot areas, which he noted is well-documented in medical texts. He stated that it is more likely than not that the Veteran's foot pain in the midfoot is due to her gout. Subsequent to the November 2010 remand, additional VA treatment records were associated with the Veteran's claims file. A February 2009 VA treatment record shows that the Veteran is being seen by an outside podiatrist. It is unclear to the Board whether this is the same podiatrist mentioned in her statement received in August 2008. In September 2008, the RO had requested an Authorization for Release from the Veteran. To date, no response has been received. The Board does not believe that additional development is necessary as the Veteran has been nonresponsive regarding the private treatment records. Thus, the decision will be based on the evidence of record. Overall, ratings in excess of 10 percent are not warranted bilaterally. Here, the Veteran exhibited painful limited range of motion. To warrant a higher rating based on gout as an active process, it would be necessary to show that the criteria for a 40 percent rating are met (as the separate 10 percent ratings amount to a combined 20 percent rating). The Veteran's gout does not result in symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year to warrant a 40 percent rating. It appears to the Board that the Veteran experienced frequent burning pain and did not experience significant flare-ups of the joint that would be considered exacerbations. There is also no competent medical evidence of any symptoms to warrant even higher ratings under other Diagnostic Codes for the ankle and foot. Under the Diagnostic Codes 5270, 5271 and 5272 for the ankle, there is no medical evidence of ankylosis, as the Veteran's foot exhibited range of motion. Also, the range of motion was not marked. There was also no evidence of malunion of os calcis or astragalus or astragalectomy to warrant the maximum rating of 20 percent under Diagnostic Codes 5273 and 5274, respectively. 38 C.F.R. § 4.71a. As for the Diagnostic Codes for the foot, the rating criteria for weak foot, anterior metatarsalgia, hallux valgus, hallux rigidus and hammertoe do not provide for a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5279, 5280, 5281and 5282. As such, the Board will consider other applicable Diagnostic Codes for rating foot disabilities. See 38 C.F.R. § 4.20. There is no medical evidence of flatfoot, claw foot and malunion/nonunion of tarsal or metatarsal bones to warrant higher ratings under Diagnostic Codes 5276, 5278, and 5283. Also, it does not appear that her foot injury is even moderately severe to warrant a higher rating under Diagnostic Code 5284. She was still able to stand, walk and exhibit range of motion. The preponderance of the evidence is against the claim for evaluation in excess of 10 percent for gout of the left and right foot. Staged ratings are not of application since the Veteran's right and left foot gout are adequately contemplated by the 10 percent ratings. Should the severity of the disabilities increase in the future, the Veteran may always file claims for increased ratings. Extraschedular Consideration In general, the schedular 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. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. In short, the rating criteria contemplate not only her symptoms but the severity of her disabilities. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to service connection for arthritis of the neck, shoulder and right arm, to include as due to the Veteran's service-connected gout, is denied. Entitlement to a rating in excess of 10 percent for service connected gout, right foot is denied. Entitlement to a rating in excess of 10 percent for service connected gout, left foot is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs