Citation Nr: 1630713 Decision Date: 08/02/16 Archive Date: 08/11/16 DOCKET NO. 02-08 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to an initial rating in excess of 20 percent for gouty arthritis of the right foot, prior to February 1, 2013. 3. Entitlement to an initial rating in excess of 10 percent for tophaceous gout of the left foot, prior to February 1, 2013. 4. Entitlement to an initial rating in excess of 10 percent for tophaceous gout of the right hand, prior to February 1, 2013. 5. Entitlement to an initial rating in excess of 10 percent for tophaceous gout of the left hand, prior to February 1, 2013. 6. Entitlement to an effective date prior to February 1, 2013, for the grant of a 100 percent rating for gout. 7. Entitlement to a rating in excess of 10 percent for residuals of right foot fracture. 8. Entitlement to a compensable rating for residuals of left inguinal hernia. 9. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 1, 2013. REPRESENTATION The Veteran is represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2001, October 2007, and March 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office in New York, New York. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015). The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. The adjudicative history associated with the above-captioned claims is extensive and complicated. The Board finds that detailing it here provides clarity and context. After the Veteran's initial claim of entitlement to service connection for gout was denied by the Board in December 1997 (a decision that was upheld by the U.S. Court of Appeals for Veterans Claims (Court) in September 1999), the Veteran submitted another claim in January 2000. In a March 2001 rating decision, service connection was granted for gouty arthritis, right foot, and a 20 percent rating was assigned thereto, effective October 20, 1998 (for reasons that are unclear to the Board). The Veteran perfected an appeal, seeking a higher initial rating. In June 2005, the Board denied the Veteran's appeal; a decision the Veteran appealed to the Court. In July 2006, the Court granted a Joint Motion for Remand (JMR), which vacated the Board's June 2005 decision, and remanded the case to the Board for action consistent with the directives of the JMR. The issue was remanded by the Board for further development in February 2007. In the February 2007 remand, the Board found that the Veteran's claim of entitlement to an initial rating in excess of 20 percent for gouty arthritis, right foot, was predicated on establishing service connection for "systemic gout." As such, the Board referred said claim to the RO for the appropriate action. Therein, the Board also referred the issue of entitlement to TDIU. While these claims were in remand status, the RO issued an October 2007 rating decision wherein it granted entitlement to service connection for tophaceous gout of the right hand, left hand, and left foot. The RO assigned separate 10 percent ratings for these disabilities, each effective July 7, 2006. In the October 2007 rating decision, the RO also continued the noncompensable ratings assigned to the Veteran's service-connected residuals of a right foot fracture and residuals of left inguinal hernia, and denied entitlement to TDIU. The Veteran perfected an appeal of these decisions. The RO contemporaneously issued an October 2007 supplemental statement of the case wherein it continued the initial 20 percent rating for the Veteran's service-connected gouty arthritis, right foot. This claim was remitted to the Board for appellate review. In April 2011, the Board remanded all of the Veteran's pending claims for additional development. Further, the Board found that a claim of entitlement to service connection for diabetes mellitus, type II, had been reasonable raised and, thus, said claim was referred to the RO for the appropriate action. While these claims were in remand status, the RO issued a May 2014 rating decision wherein it granted a 100 percent rating for "gout," effective February 1, 2013. In so doing, the RO stopped the separate ratings for gouty arthritis of specific joints (i.e., right foot, left foot, right hand, and left hand), effective February 1, 2013. The Veteran perfected an appeal, seeking an effective date prior to February 1, 2013, for the grant of the 100 percent rating. In a May 2014 supplemental statement of the case, the RO confirmed and continued the denial of ratings in excess of those already granted to gouty arthritis of the right foot, left foot, right hand, and left hand, all presumably prior to February 1, 2013. The RO also confirmed and continued the denial of a compensable rating for residuals of left inguinal hernia, but granted a 10 percent for residuals of a right foot fracture, effective July 7, 2006. Finally, the RO denied entitlement to TDIU prior to February 1, 2013. As the maximum benefit available had not been granted, these claims were remitted to the Board for further appellate review. Given that the Veteran's service-connected gout has already been assigned the maximum schedular rating of 100 percent, on and after February 1, 2013, no further appellate consideration is warranted. As such, the Board will not address the issue of entitlement to a rating in excess of 100 percent, on and after February 1, 2013, for gout herein. With the exception of the claim of entitlement to a compensable rating for residuals of left inguinal hernia, these claims will be addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT The Veteran's service-connected residuals of left inguinal hernia are asymptomatic. CONCLUSION OF LAW The criteria for a compensable rating for residuals of left inguinal hernia have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7338 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As discussed in the Introduction, in the February 2007 remand, the Board referred a claim of entitlement to TDIU to the RO for the appropriate action. Under the then existent law and regulations, this referral triggered the RO to consider claims of entitlement to increased ratings for all of the Veteran's service-connected disabilities, including residuals of left inguinal hernia. Prior to the initial adjudication of the Veteran's claim of entitlement to a compensable rating for residuals of left inguinal hernia, the RO's March 2007 letter to the Veteran did not satisfied the duty to notify provisions with respect to the claim of entitlement to a compensable rating for residuals of left inguinal hernia. Specifically, the March 2007 letter was limited in scope to providing the Veteran notice regarding his claim to reopen the issue of entitlement to service connection for systemic gout and establishing entitlement to TDIU. Despite this notice defect, the Board finds that the Veteran was not prejudiced. In this regard, the Board finds that the Veteran had actual knowledge of the information and evidence necessary to substantiate his claim. Specifically, the Veteran was provided notice of how to substantiate a claim for a higher rating via a September 2008 letter. Further, the Veteran was provide notice of the specific diagnostic criteria used to evaluate disabilities associated with inguinal hernias in the October 2007 rating decision and in the January 2009 statement of the case. The Board also finds that the Veteran was not prejudiced by the timing of the notice. In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to assist was met in this case. VA obtained the Veteran's service treatment and personnel records; assisted the Veteran in obtaining evidence, including evidence from the Social Security Administration; afforded the Veteran physical examinations; and obtained medical opinions as to the severity of his service-connected disability. All known and available records relevant to the issue of entitlement to a compensable rating for residuals of left inguinal hernia have been obtained and associated with the record, and the Veteran has not contended otherwise. As discussed herein, in referring a claim of entitlement to TDIU in the February 2007 remand, the Board triggered the RO's then existing duty to develop and adjudicate increased rating claims for each of the Veteran's service-connected disabilities, including residuals of left inguinal hernia. Pursuant to this claim, the Veteran was provided a VA examination in June 2007. After the RO denied the claim of entitlement to a compensable rating for residuals of left inguinal hernia in an October 2007 rating decision, the Veteran perfected an appeal. In April 2011, the Board found that the June 2007 VA examination was too remote to adequately evaluate the Veteran's claim. Thus, in order to satisfy VA's duty to assist, the Board found that a remand was required to provide the Veteran with a contemporaneous examination. While this claim was in remand status, the Veteran was scheduled for and underwent a VA examination in April 2014. After the RO issued a May 2014 supplemental statement of the case wherein the noncompensable rating was confirmed and continued, the Veteran's claim was remitted to the Board for further appellate review. Consequently, the Board finds that the RO substantially complied with the April 2011 remand directives and, consequently, a remand for corrective action is not required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). As such, the Board will address the merits of the Veteran's claim herein. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Throughout the period of this claim, the Veteran's service-connected residuals of left inguinal hernia have been assigned a noncompensable rating pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7338. Under Diagnostic Code 7338, a noncompensable rating is assigned for a small, reducible inguinal hernia, or when no true hernia protrusion is present. A 10 percent rating is assigned for post-operative recurrent inguinal hernias that are readily reducible and well-supported by a truss or belt. A 30 percent rating is assigned for a small, post-operative, recurrent inguinal hernia; or an inguinal hernia that is unoperated, irremediable, not well-supported by a truss, or not readily reducible. A maximum 60 percent rating is assigned when there is a large, post-operative, recurrent inguinal hernia that is not well-supported under ordinary conditions and not readily reducible, when considered inoperable. 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102, 4.3 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In June 2007, the Veteran underwent a VA examination in order to ascertain the severity of his service-connected residuals of left inguinal hernia. During the examination, the Veteran did not report any symptoms or functional impairment associated with his left inguinal hernia. Upon physical evaluation, the examiner found no current inguinal or ventral hernia. The Veteran did not use a truss or belt. The examiner did not find any residual, malignancy, or evidence of an inguinal hernia. Ultimately, the diagnosis was status post inguinal herniorrhaphy with no inguinal hernia now. In his September 2008 notice of disagreement and his March 2009 substantive appeal, the Veteran generally asserted that he was entitled to a higher evaluation, but provided no elaboration as to the basis of that claim or description of the manifestations associated with his left inguinal hernia or the residuals thereof. In April 2014, the Veteran underwent another VA examination in order to determine the severity of his service-connected residuals of left inguinal hernia. During the examination, the Veteran reported that he was first diagnosed with an inguinal hernia in 1966. The Veteran did not remember which side this hernia occurred, but stated that it was surgically repaired at Fort Sill, Oklahoma. Since then, the Veteran stated that "he has had no problems." Upon physical examination, the examiner did not find a hernia on either side. Moreover, the examiner did not find any scars (surgical or otherwise), or any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the Veteran's left inguinal hernia. Further, the examiner did not find any indication for use of a supporting belt. The examiner opined that the Veteran's residuals of left inguinal hernia do not affect his ability to work. Again, in order for a compensable rating to be assigned, the evidence of record must demonstrate that the disability picture more nearly approximates a post-operative recurrent inguinal hernia that is readily reducible and well-supported by a truss or belt than a small, reducible inguinal hernia. However, the Veteran has not proffered any specific assertion regarding the severity of his residuals of left inguinal hernia, and the evidence of record does not otherwise show that he complained of or received treatment for residuals of left inguinal hernia. Indeed, during the April 2014 VA examination, the Veteran stated that he has experienced no problems with his left inguinal hernia since it was surgically repaired during his active duty. Further, the Veteran underwent VA examinations in June 2007 and April 2014. On both occasions, the VA examiners did not find any symptoms or residuals of a left inguinal hernia, and the Veteran did not wear or need to wear a truss or belt. The evidence of record essentially demonstrates that the Veteran's left inguinal hernia was surgically corrected and that there are no appreciable residuals of the hernia or surgery. Consequently, the Board finds that a compensable rating for residuals of a left inguinal hernia is not warranted for any portion of the period of the claim. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. ORDER A compensable rating for residuals of left inguinal hernia is denied. REMAND Diabetes Mellitus, Type II Pursuant to his claim, the Veteran was provided a VA examination in October 2010. Evidence associated with the record since then suggests that the Veteran's service-connected diabetes mellitus, type II, has worsened. The Board finds that the October 2010 VA examination is too remote, and the evidence of record is otherwise insufficient to adequately assess the current severity of the Veteran's diabetes mellitus, type II. In order satisfy VA's duty to assist, the Board finds that a remand is required to provide him a contemporaneous VA examination. Gout As discussed in the Introduction, the Veteran submitted a claim of entitlement to service connection for "gout" in January 2000. In a March 2001 rating decision, service connection was granted for gouty arthritis, right foot, and a 20 percent rating was assigned thereto. For reasons unknown to the Board, an effective date of October 20, 1998, was assigned for the 20 percent rating. The Veteran perfected an appeal, seeking a higher initial rating. In June 2005, the Board denied the Veteran's claim; a decision that the Veteran appealed to the Court. Pursuant to a July 2006 JMR and Court Order, the Board's June 2005 decision was vacated and the issue was remanded to the Board for consideration consistent with the JMR's directives. In February 2007, the Board remanded the Veteran's claim, finding that additional development was required. Specifically, the Board found that it was clear from the JMR and written arguments that the Veteran's claim of entitlement to an initial rating in excess of 20 percent for gouty arthritis, right foot, was premised, in part, on establishing service connection for "systemic gout." Consequently, the Board referred a claim to reopen the claim of entitlement to service connection for systemic gout to the RO for the appropriate action. In October 2007, the RO issued a rating decision wherein it granted entitlement to service connection for tophaceous gout of the right hand, left hand, and left foot, assigning each disability a 10 percent rating, effective July 7, 2006. These evaluations were assigned using the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5002, for chronic residuals of gout. The Veteran perfected an appeal. In the April 2011 remand, the Board discussed the manner in which gout is evaluated under the Rating Schedule. The Board observed that, although the Rating Schedule includes a specific diagnostic code for gout (38 C.F.R. § 4.71a, Diagnostic Code 5017), that diagnostic code directs VA to rate gout under 38 C.F.R. § 4.71a, Diagnostic Code 5002, which concerns rheumatoid arthritis. Before an evaluation under Diagnostic Code 5002 can be initiated, however, a determination must be made as to whether the gout is an active process. This is so because the rating criteria for a disability that is an active process are very different than those for a chronic residual. Further, VA is instructed to not combine active process and chronic residual ratings, but that the higher evaluation is to be assigned. 38 C.F.R. § 4.114, Diagnostic Code 5002, Note. As such, the Board remanded the Veteran's claim in order to provide him with another VA examination. The Board requested, in part, that the examiner identify active processes of gout versus chronic residuals of gout. In June 2011, the Veteran underwent a VA examination to assess his gout. After reviewing the Veteran's relevant history and the evidence of record, and after administering a thorough clinical evaluation, the examiner rendered a diagnosis of, "deforming gouty osteoarthritis of the wrists, hands and feet." The examiner made no distinction between the aspects of the Veteran's gout that were "an active process" versus those that were "a chronic residual." In April 2014, the Veteran underwent another VA examination to ascertain the severity of his service-connected gout. Based on the results of this examination, the RO issued a May 2014 rating decision wherein it granted a 100 percent rating for "gout," effective February 1, 2013, using the rating criteria for "an active process" under Diagnostic Code 5002. In so doing, the RO stopped the separate ratings for the Veteran's gouty arthritis of the right foot, right hand, left foot, and left hand, effective February 1, 2013. In assigning the effective date for the 100 percent rating, the RO chose February 1, 2013, because it found that it was the date that entitlement arose. In explaining its rationale, the RO found a June 12, 2012, disapproval for a refill of colchicine, a medication prescribed to treat the Veteran's gout. The RO then found evidence showing that the Veteran's colchicine was later approved on February 1, 2013. The Veteran perfected an appeal of this decision, claiming entitlement to an earlier effective date. Based on the above, with respect to the various ratings assigned for the Veteran's gout prior to February 1, 2013 (right foot, right hand, left foot, left hand), the Board finds that a remand is required for additional development. The Board observes that the Veteran's gout claims have been pending before VA since January 2000. Indeed, in the February 2007 remand, the Board found that the claim of entitlement to a rating in excess of 20 percent for gouty arthritis, right foot, was premised on establishing service connection for "systemic gout," a claim that it then referred to the RO for appropriate action. Despite the prolonged period that this claim has been pending before VA, the evidence associated with the record does not address whether the disability associated with the Veteran's gout is manifested by an active process and/or a chronic residual prior to February 1, 2013. . This information is vital to accurately evaluate the Veteran's claim. 38 C.F.R. § 4.114, Diagnostic Code 5002. Further, in the April 2011 remand, the Board requested that a VA examiner provide an opinion discerning between the Veteran's active processes and chronic residuals of gout; however, neither the June 2011 nor the April 2014 VA examiner did so. Moreover, the Board finds that the evidence of record is otherwise inadequate to adjudicate the Veteran's claims at issues herein. Consequently, the Board finds that a remand is required in order to obtain a supplemental opinion from the April 2014 VA examiner. Regarding the Veteran's claim of entitlement an effective date prior to February 1, 2013, for the grant of a 100 percent rating for gout, the Board finds that this matter is inextricably intertwined with the claims for increased ratings being remanded herein. As such, the Board finds that a remand for contemporaneous adjudication is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision in the matter). Residuals of Right Foot Fracture and TDIU The Board finds that the claim of entitlement to a rating in excess of 10 percent for residuals of right foot fracture and entitlement to TDIU, prior to February 1, 2013, are inextricably intertwined with the issues being remanded herein. As such, the Board finds that remanding these issues is required for contemporaneous adjudication. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. 2. Then, the Veteran should be afforded a VA examination to determine the current severity of his service-connected diabetes mellitus, type II. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated diagnostic tests and studies must be accomplished. The RO should ensure that the examiner provides all information required for rating purposes. 3. All pertinent evidence of record must be made available to and reviewed by the April 2014 VA examiner, or an appropriate substitute, in order to obtain a supplemental opinion. After reviewing all of the relevant evidence of record, the examiner should provide opinions as to the following: (a) During the period from January 1999 through January 2013, did the Veteran experience "chronic residuals" of gout? If so, where, anatomically speaking, did these chronic residuals manifest? Over what period or periods of time was each chronic residual present, approximately (month and year, if possible)? (b) During the period from January 1999 through January 2013, did the Veteran experience "an active process" of gout? If so, over what period or periods of time was an active process present, approximately (month and year, if possible)? In addressing the above questions, to the extent possible, the examiner must distinguish between manifestations of the Veteran's gout and his residuals of right foot fracture during this time period (from January 1999 through January 2013). The examiner should also provide an opinion concerning the impact of the Veteran's service-connected gout on his ability to work from January 1999 through January 2013, to include whether it precluded him from maintaining any form of substantially gainful employment consistent with his education and industrial background. In so doing, the examiner should reconcile his/her opinion with those provided by VA examiners in 2003 and 2007 and Dr. C.B. in 2005. The supporting rationale for all opinions expressed must be provided. 4. The RO should also undertake any other development it determines to be warranted. 5. Then, the claims must be re-adjudicated. In so doing, the RO is reminded that all of the Veteran's claims concerning gout, including the effective date claim, stem from his January 2000 submission. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) As noted above, this appeal has been advanced on the Board's docket. It also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs