Citation Nr: 1336846 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 08-12 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial evaluation (rating) in excess of 20 percent for gout. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1979 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which in pertinent part, granted service connection for gout and assigned a noncompensable rating, effective February 28, 2006. In March 2008, the RO assigned a 20 percent evaluation for gout, effective February 28, 2006. During the course of the appeal, the Veteran's claims file was transferred to the RO in Denver, Colorado; hence, that RO now has jurisdiction over the claim on appeal. In February 2011, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. During the February 2011 Board Videoconference hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony to more adequately portray the severity of the Veteran's gout disability, to include the impact of the disability on the Veteran's ability to work. The Veterans Law Judge also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2013). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In April 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion regarding the RO's compliance with the April 2011 Board Remand is included in the Duties to Notify and Assist section below. The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU), as recognized in Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised by the Veteran or the evidence in this case, but finds that a TDIU claim has not been raised. Here, the Veteran has not reported or contended that he is unable to work specifically due to his service-connected gout and, while the Veteran has repeatedly reported that the service-connected gout has had a significant effect on occupation, the June 2011 VA examiner concluded that in between attacks, the Veteran has no difficulty or problem with employment and could be employed in any type of work. During the Board hearing before the undersigned and in an April 2012 submission, the Veteran testified that he continues to work; thus, the record demonstrates that the Veteran has not claimed to be unemployable due to the service-connected gout. For this reason, a TDIU claim is not raised by the record in this case. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT For the entire appeal period, the Veteran's service-connected gout is manifested by complaints of pain primarily in either one of the great toes and the dorsum of the foot, and occasionally in the knees, ankles, right hand, and elbows resulting in incapacitating exacerbations of gout occurring three or more times a year; it is not manifested by weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a less number over prolonged periods. CONCLUSION OF LAW The criteria for an initial evaluation of 40 percent, but no higher, for gout have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.71a, Diagnostic Codes 5002, 5017 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim for service connection for gout prior to initial adjudication. A March 2006 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. Concerning an appeal for a higher initial rating, because the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for gout, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including private and VA treatment reports, have been secured. As discussed above, the Board remanded the matter in April 2011 to obtain outstanding private treatment records identified by the Veteran. Pursuant to the April 2011 Board Remand, in an April 2011 letter, the Veteran was provided with VA Form 21-4142, Authorization and Consent to Release Information. To date, the Veteran has not submitted the requested release of information authorization. The duty to assist is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000) (the veteran cannot stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (veteran cannot passively wait for help from VA). The Veteran has frustrated the Board's attempt to obtain substantial compliance with the terms of the April 2011 Remand, which sought to obtain outstanding private treatment records, and complete compliance has been rendered impossible. Thus, there is no violation of the previous Remand orders which can be remediated in this regard. See Stegall, 11 Vet. App. at 268. In short, no further attempt to obtain this information is warranted. It also appears that the Veteran submitted some private treatment records in March 2011 and April 2012, as identified in the April 2011 Remand. The RO arranged for VA examinations in September 2006 and June 2011 (pursuant to the April 2011 Board Remand). These examinations, taken together, are adequate for rating purposes. The VA examiners reviewed the Veteran's medical history and complaints, and made clinical observations and findings regarding the severity of the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Stegall at 268. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. The Board has reviewed all of the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Gout Rating Analysis The Veteran claims that the service-connected gout is more severe than contemplated by the current 20 percent evaluation and contends that a higher evaluation is warranted. In an August 2006 rating decision, the RO granted service connection for gout and assigned a noncompensable rating, effective February 28, 2006. In March 2008, the RO assigned a 20 percent evaluation for gout, effective February 28, 2006. The Veteran's gout is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5017. Under Diagnostic Code 5017, gout is rated under the criteria for rheumatoid arthritis. Pursuant to the provisions of Diagnostic Code 5002, rheumatoid arthritis warrants a 100 percent disability evaluation when there is evidence of an active process with constitutional manifestations associated with active joint involvement that is totally incapacitating. A 60 percent disability evaluation is warranted when there is less symptomatology than the criteria for a 100 percent evaluation but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. A 40 percent disability evaluation is warranted when there are symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 20 percent disability evaluation is warranted for one or two exacerbations a year in a well-established diagnosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5002 (2013). 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. It is noted that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion and that 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5002. Evidence relevant to the severity of the Veteran's gout includes reports of VA examinations conducted in September 2006 and June 2011, as well as ongoing VA and private treatment records. At the September 2006 VA examination, the Veteran reported that he has an average of six attacks a year that most commonly affect the right large toe, the left large toe, the dorsum of his foot, and the knees, ankles, and elbows, which are affected much less frequently than the feet. The examiner clarified that the reported six attacks per year just affect the feet. The Veteran reported that an attack could last up to 5 days. He indicated that about twice a year he will would 1/2 day and probably miss a day because of his gout attacks. Results of the September 2006 VA examination show no evidence or abnormality of the feet. The examiner indicated that the gout was in complete remission and the feet examination showed well-structured feet bilaterally. There was no evidence of deformity or discoloration or edema. The arches were well-developed, the Achilles tendon was grossly in the central and manipulation of the feet did not cause problems. Upon clinical evaluation, the examiner indicated that there was no development of any chronic arthritis as a result of the Veteran's gout at this stage. The final assessment, at that time, was gouty arthritis, currently in remission, without any adverse sequelae such as deformity or chronicity at that stage, or any evidence of kidney dysfunction or lithiasis. X-ray results taken at that time revealed possible bunionectomy and mild osteoarthritis of the first metatarsophalangeal joint with no definite evidence of gout. VA outpatient treatment reports indicated an episode of gout in the left knee, approximately three weeks after the September 2006 VA examination. In February 2007 and March 2007, VA treatment reports noted that the right knee was involved in an episode of gout. Pursuant to the April 2011 Board Remand, the Veteran underwent another VA examination in June 2011. There, the Veteran reported an increase of attacks to approximately twice per month since 2005. He noted that the attacks would last three days or less and would occur in either one of the great toes. Approximately once a year, he reported having an attack involving the right knee and occasionally right hand and right elbow. The acute attacks would only occur in one joint at a time. The Veteran did not report any weight loss with regard to the acute gouty arthritis, and in fact, over the last five years prior to the June 2011 examination, he gained approximately 10 pounds. There was no history of anemia at any time. Upon physical evaluation, including X-rays of the involved joints, the June 2011 VA examiner diagnosed the Veteran with acute gouty arthritis (monoarticular with each attack) primarily occurring in either one of the great toes twice a month, with a duration of three days or less which is ameliorated with the use of medication. The examiner indicated that for the two or three days following an acute episode of gouty arthritis, approximately 50 percent of the time, the Veteran is unable to stand or be on his feet due to pain. The examiner noted that at no time have the episodes of acute gouty arthritis led to any weight loss, anemia, or any other severe impairment of the Veteran's health. In between episodes of acute gouty arthritis, the examiner also noted that the Veteran feels and functions normally. The Veteran has also submitted statements and testified before a Veterans Law Judge at a Videoconference Board hearing during the pendency of this appeal. In the April 2008 substantive appeal, the Veteran reported that he experienced many attacks during the previous year, but that he did not seek treatment from the doctor during every attack. Instead, he reported that his doctor prescribes enough medication so he can "self-medicate" without having to see the doctor for each attack. During the February 2011 Board hearing, the Veteran testified that he experienced two to three attacks or flare-ups per month. Hearing transcript at 5. During flare-ups, the Veteran testified that he is limited to his bedroom on the top floor as he is unable to walk down the stairs due to pain. Id. at 15. Upon review of the lay and medical evidence of record, the Board finds that the Veteran's service-connected gout is characterized by incapacitating exacerbations occurring three or more times a year such as to warrant the next higher evaluation of 40 percent under Diagnostic Code 5017. Here, the evidence of record demonstrates that the Veteran has experienced symptoms of gout, including attacks or flare-ups two to three times per month, and has received treatment throughout the appeal period. The Board also notes that in 2005, the Veteran's gout appeared to have responded well to a change in medication, resulting in a reduction in the number of gouty attacks and the severity of such attacks to less than one day; however, in 2007 to 2011, the attacks would last from five to seven days. Again, in February 2011, a change in medication resulted in a significant reduction in duration of attacks. Regardless, from 2005 to the present, the number of attacks have increased to approximately twice per month. The Veteran has reported attacks or flare-ups of gout two to three times per month and the evidence demonstrates that these attacks or flare-ups are incapacitating in nature. The Veteran has described flare-ups with excruciating pain that are very limiting and that interfere with the Veteran's employment. The examiner in the June 2011 VA examination report indicated that for the two or three days following an acute episode of gouty arthritis, approximately 50 percent of the time, he is unable to stand or be on his feet due to pain. Based on the above, the Veteran's disability picture for gout more closely approximates an initial rating of 40 percent disabling. As such, the Board finds that the Veteran's gout meets the criteria for a rating of 40 percent, but no greater than 40 percent, for the entire initial rating period. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Board further finds that the Veteran's gout has not demonstrated weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods required for a 60 percent evaluation. The contentions of the Veteran concerning the frequency and severity of his gout symptoms have been considered. The Board finds that the weight of the lay and medical evidence does not demonstrate weight loss and anemia productive of severe impairment of health. At the time of the September 2006 VA examination, there was no findings of anemia or weight loss. At the time of the June 2011 VA examination, no weight loss or anemia was noted, and the examiner found no joint deformities or systemic involvement due to the gout. The examiner did not find that the Veteran's gouty arthritis episodes result in severe impairment of health. The outpatient treatment record do not show severe impairment of health. Further the weight of evidence does not demonstrate severely incapacitating exacerbations occurring four or more time a year or a lesser number over prolonged periods. At the time of the September 2006 VA examination, the Veteran indicated that he had a average of 6 attacks a year and indicated that an attack could last up to 5 days. It was indicated that regarding work, that about twice a year he would work 1/2 day and miss a day because of gout attacks. It was also indicated that the effect on his lifestyle was that it affected his ability to do exercises. At the time of the June 2011 VA examination, the examiner considered the Veteran's reports of pain and incapacitation, but specifically found that the Veteran's gouty arthritis episodes do not result in severe impairment of health. The examiner in the June 2011 VA examination report indicated that for the two or three days following an acute episode of gouty arthritis, approximately 50 percent of the time, he is unable to stand or be on his feet due to pain. The evidence indicates that there are attacks of gout and flare-ups but the weight of the evidence indicates that the level of impairment during the attacks result in complete incapacitation. The 40 percent rating assigned recognizes that there are incapacitating episodes of gout. The weight of the evidence shows that the level of symptomatology does not rise to the level of severe impairment of health or severely incapacitating exacerbations, even during the Veteran's attacks and flare-ups of gout. The Board must also consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 589. In this regard, the Board finds no other applicable diagnostic codes that would afford the Veteran an initial disability rating in excess of 40 percent. As such, the Veteran's gout is not manifested by weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a less number over prolonged periods, during any period on appeal, as required for a 60 percent disability rating under Diagnostic Code 5002. 38 C.F.R. § 4.71a. As the preponderance of the evidence is against a rating in excess of 40 percent for gout, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the symptomatology and impairment caused by the Veteran's service-connected gout are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 5017 and 5002, specifically provide for disability ratings based on arthritis and incapacitating exacerbations. See 38 C.F.R. §§ 4.21, 4.71a, Diagnostic Codes 5002 and 5017. In this case, considering the lay and medical evidence, the disability of gout has been manifested by pain resulting in incapacitating exacerbations. The Veteran has also indicated that exacerbations include itchiness at the affected joint, some difficulty sleeping and headaches. These findings and symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). The Board further considered the Veteran's functional limitations of being unable to stand and walk downstairs. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of the Veteran's symptoms on his occupation and daily life. In the absence of exceptional factors associated with gout, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial evaluation (rating) of 40 percent, but no higher, for gout is granted. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs