Citation Nr: 18143381 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-18 470 DATE: October 19, 2018 ORDER The reduction in rating from 40 percent to 20 percent for bilateral gout was proper. FINDING OF FACT While the Veteran clearly had demonstrable non-incapacitating episodes intermittently from his bilateral gout, the preponderance of the evidence demonstrates that neither key prong of the criteria was met for a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5002. This consisted of absence of symptom combinations showing definite impairment of health and objectively supported by examination; and absence of incapacitating exacerbations, a minimum of three times per year. CONCLUSION OF LAW The reduction in rating for bilateral gout was warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.105(e), 3.159, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5002 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The present issue consisting of the propriety of the reduction in rating for bilateral gout, with an attendant claim for increase, was formally appealed in March 2018. This occurred prior to the March 2018 Board decision/remand, and was not then immediately considered. It is apparent that the Regional Office (RO) in the capacity of the Agency of Original Jurisdiction (AOJ) has not yet had the opportunity to carry out the evidentiary development directed pursuant to the Board’s March 2018 remand. Accordingly, the matter is referred to the AOJ for appropriate action. The propriety of the reduction in rating for bilateral gout from 40 to 20 percent, including the issue of whether an increased rating is warranted beyond 40 percent. There are specific particularized notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the claimant in a reduction case are set forth under 38 C.F.R. § 3.105 (e), and are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Here, these procedural safeguards were properly dispensed with, so there is no due process of law violation that would inherently invalidate the RO’s reduction in rating action. See, e.g., December 2017 proposed rating reduction and December 2017 notice letter; 38 C.F.R. § 3.105(e); See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Therefore, consideration of the claim regarding the propriety of reduction in rating proceeds to the merits. Under VA law, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Whereas there are specific additional provisions intended to provide stability for those ratings in effect for at least five years, pursuant to 38 C.F.R. § 3.344, those do not apply insofar as the effective date of service connection for bilateral gout with a 40 percent rating, that effective date being January 10, 2017. Generally speaking, a VA rating reduction must be based upon review of the entire history of the veteran’s disability, reconciling any contrary findings into a consistent picture. 38 C.F.R. § 4.2. VA must then consider whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting such change are based upon thorough examinations. In any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b) as required. See Brown, 5 Vet. App. at 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition has actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The Veteran now seeks to restore the 40 percent rating for his bilateral gout. Reviewing the relevant history of this case, a February 2017 RO rating decision originally granted entitlement to that benefit. The applicable rating criteria is further denoted below. Gout is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5017. Under this diagnostic code, gout is in turn rated under the criteria for rheumatoid arthritis under Diagnostic Code 5002. Under Code 5002, a 20 percent evaluation is warranted for active rheumatoid arthritis where there are one or two exacerbations a year in a well-established diagnosis. A 40 percent evaluation is warranted for active rheumatoid arthritis 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 for active rheumatoid arthritis 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 active rheumatoid arthritis 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. A note to Diagnostic Code 5002 states that ratings for an active process will not be combined with ratings for chronic residuals. Instead, the higher of the two evaluations should be assigned. Having reviewed the pertinent case findings on or around the time of original effective date of service connection and award of the 40 percent rating, the Veteran’s October 2016 correspondence refers to symptomatology generally attributable to the range of conditions described, that including indigestion, irritable bowel syndrome and gastrointestinal disorder, as well as joint pain. As to the joint pain and effect upon everyday living activities, the Veteran described pain in the ankles, knees and back which made it difficult to climb stairs or ladders, or sometimes even walk. Because of this, he stated, he could not carry out activities such as traversing a steep hill. The Veteran stated he was trained as a farrier (horseshoe application) and as a welder, and that he could no longer work in these areas because he could not bend over, nor walk or hold objects in his hands for extended periods of time. It was not specifically indicated whether the Veteran was referring to his bilateral gout with regard to the above, or instead any other generalized orthopedic joint pain. Then on VA Compensation and Pension examination in December 2016, the Veteran described as the primary musculoskeletal complaint apart from already service-connected joint conditions, having had intermittent episodes of gout. The other existing service-connected joint disorders affected the bilateral ankles, knees, spine and fingers. As to the gout, the Veteran stated that he was treated with allopurinol daily, and he had Indocin for flares and got occasional prednisone if not responding quickly. One prior course of colchicine was not found to be helpful, but that pain may not have been due to gout. The Veteran had no present symptoms at the time of the exam. He had experienced 4-5 flares in the past year, and if he started Indocin within a day or so of symptoms usually only had one or two joints involved. The condition tended to start in either knee, and if untreated historically could go to either ankle and any digit of either foot. The Veteran did not have any mobility impairment of any joint related to gout currently on exam. He had no current joint warmth, swelling or tenderness with motion and did not claim any gout symptoms. His family history was negative for gout, and he had no known gouty arthropathy and no known tophi. The Veteran’s worst attack was in 1996, and he would start Indocin at the earliest sign of flare which lead to resolution within days. He had no renal involvement at that time. Further indicated, the Veteran required continuous use of medication for the arthritis condition, which was allopurinol. Further indicated from the objective examination findings, the Veteran had not lost weight due to his arthritis condition. He did not have anemia. He experienced pain attributable to the condition which affected the bilateral knees, ankles and feet and toes. During a flare-up, the Veteran’s gout could affect these joints, though there was no joint pain at that particular moment. There was no limitation of joint movement or joint deformity attributable to the arthritis condition. There was not involvement of any systems other than joint attributable to this arthritis condition. The Veteran did have exacerbations which were not incapacitating, with 4 or more non-incapacitating exacerbations per year. The most recent such exacerbation was 3-4 days. There were not constitutional manifestations of this associated with active joint involvement which were totally incapacitating. The Veteran’s arthritis was not manifested by weight loss and anemia productive of severe impairment of health. There were not symptom combinations productive of definite impairment of health and objectively supported by examination findings. As far as other pertinent findings, there was no evidence of tophi on examination; there was no joint swelling, erythema or warmth of any of his lower extremity joints; there was no deformity of any of his joints because of gout; there was no tenderness to mobility of knees and ankles or toes presently. A diagnostic procedure of a uric acid test was negative. Recent x-rays of the right knee, bilateral elbow, lumbar spine, thoracic spine, bilateral ankles and bilateral hands did not provide any radiographic suggestion of gout in any of these joints. According to the VA examiner, the Veteran would have short-term ambulatory difficulties with acute flares of gout that may last 3-4 days. Flares were infrequent when he remained consistent with his medication. The examiner indicated in summary that on that exam, the Veteran had no manifestation of gouty arthropathy of his stated affected joints that being all lower extremities, which included knees, ankles and digits of his feet. He had no pain with range of motion of those joints, no deformity and no evidence of tophi. There had not been a flare for some time, but he had 4-5 flares in the past year that responded readily to Indocin. Upon VA re-examination in January 2017, it was again notated that the Veteran was placed on allopurinol and Indocin with control of his pain and reduction of his uric acid. His gout attacks could occur as often as monthly during the winter and last up to two weeks. With medication gout attacks could be ended within a day or two. The swelling and pain then migrated to his entire foot and ankle and then to his knees. This could occur in any order. These were all now controlled since he was placed on uricosuric medications and Indocin. The Veteran had neither lost weight nor developed anemia due to his arthritis condition. There was pain manifested from gout affecting the knee, ankle, foot/toes. The Veteran had exacerbations which were not incapacitating, 4 or more times per year. The most recent occurred in August 2016. The attacks had been reduced from 14 days to two days since diagnosis and treatment in 1996. The total duration of incapacitation over the past 12 months, was from 2 weeks to less than 4 weeks. There were no constitutional manifestations associated with active joint involvement which were totally incapacitating. There were not symptom combinations manifested by definite impairment of health. The functional impact of the Veteran’s condition consisted of marked short term inability for prolonged walking, standing or climbing for 3-4 days with each gout attack which was now monthly or less frequently. By his October 2017 statement, the Veteran indicated that he had not been able to work in the areas of his prior work expertise since 2006. He had returned to school at his own expense and transitioned into a non-physical area of work. He stated there were issues continuing in his career, and that gout attacks sometimes prevented him from driving or even typing. As indicated, the applicable rating criteria is as follows. The assignment of a 20 percent rating is warranted for active rheumatoid arthritis where there are one or two exacerbations a year in a well-established diagnosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5002. A 40 percent evaluation is warranted for active rheumatoid arthritis for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. See Id. The Board finds that restoration of the 40 percent rating is not supported by sufficient findings. Certainly, the Veteran has symptomatology that is at least what is required for 20 percent, because there were 4-5 non-incapacitating episodes of arthritis per year. Next to consider is whether the higher 40 percent rating requirement is met. The Veteran’s overall disability picture does not more nearly approximate the criteria for the assignment of a rating in excess of 20 percent. The Veteran does not have incapacitating exacerbations. For the remaining prong of the rating criteria as to what warrants the award of 40 percent, the signs and symptomatology are not at or close enough to “definite impairment of health.” For one, both VA examiners found there was not “definite impairment” and moreover, there were not objectively notated physical manifestations of gout apart from some degree of episodic discomfort or pain, and from this standpoint there was absent weight loss, anemia, or other constitutional symptoms. Overall, the full and appropriate consideration also has been given to the Veteran’s lay witness statement that he had considerable job-related difficulties due to the condition, and that without medication, his condition would be severely incapacitating. With regard to job-related difficulties, the language of the VA rating criteria at Diagnostic Code 5002 requires either “incapacitating exacerbations,” or, “[symptoms producing] definite impairment of health objectively supported by examination findings.” The rating criteria literally necessitate that one objectively demonstrate the “definite impairment.” Here there is a very limited record of symptoms to begin with. To the extent the Veteran’s service-connected bilateral gout has caused or contributed to employment difficulties, above and beyond his other already service-connected disabilities, generally the rating schedule is supposed to take into account occupational impairment, along with impact on daily life activity. See 38 C.F.R. § 4.1 (2018). Additionally, in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that, when assigning a disability rating, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. "Thus, if [the applicable diagnostic code (DC)] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication when evaluating [the disability]. Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Here, the criteria for rating gout do not contemplate the ameliorative effect of medication. However, the VA examiners have not indicated that the severity of his condition would meet the criteria for a 40 percent rating without the use of medication. Moreover, the percentage ratings assigned for service-connected disabilities are supposed to represent as far as can practically be determined the average impairment in earning capacity resulting from such disease or injury in civil occupations. Here, the Veteran's current schedular rating is commensurate with the average impairment in earning capacity due to the service-connected gout with the use of medication. The Veteran has admittedly stated that his medications reduce his flare-ups and their severity. To assign a rating based on how much more severe the gout would be but for the medication would amount to compensating the Veteran for a level of severity that does not exist based on the actual manifestations shown because his medications significantly reduce the frequency and severity of his flare-ups. The Veteran’s overall disability picture more nearly approximates the criteria for the assignment of a 20 percent rating, and no higher, because the Veteran does not experience incapacitating exacerbations of gout more than three times per year. (Continued on the next page)   Accordingly, the claim for restoration of a 40 percent rating for gout is denied, as the preponderance of the evidence weighs against recovery, and under these circumstances VA’s benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons