Citation Nr: 18146797 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 15-39 960 DATE: November 1, 2018 ORDER Entitlement to a rating in excess of 20 percent for service-connected gout is denied. REMANDED Entitlement to service connection for a heart disability claimed as due to in-service herbicide exposure is remanded. Entitlement to compensation for a heart disability pursuant to 38 U.S.C. § 1151 is remanded. FINDING OF FACT At no point throughout the appeal period was the Veteran’s gout manifest by symptom combinations productive of definite impairment of health objectively supported by examination findings nor did he suffer incapacitating episodes. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for service-connected gout have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, DCs 5002, 5017 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1970 to April 1974. Entitlement to a rating in excess of 20 percent for service-connected gout The Veteran seeks entitlement to a rating in excess of 20 percent for service-connected gout. Gout is rated under Diagnostic Code (DC) 5002 for atrophic rheumatoid arthritis. Pursuant to DC 5002, ratings are assigned based on whether rheumatoid arthritis is an active process or is manifested by chronic residuals. The ratings for the active process are not combined with the residual ratings, and the higher evaluation is to be assigned. Given that the service-connected gout has manifested throughout the appeal period as an active process, indicated by his increasingly severe symptoms which warrant staged ratings, the Board has properly limited its consideration to the rating criteria regarding gout rated by analogy to rheumatoid arthritis as an active process. When rating gout by analogy to rheumatoid arthritis as an active process under DC 5002, a minimum 20 percent rating is warranted for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. A 60 percent rating is assigned for 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 maximum 100 percent rating is assigned for constitutional manifestations associated with active joint involvement that is totally incapacitating. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id.; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49(1990). The claims file includes evidence of the Veteran’s October 2011 emergency room visit, where he had a flare of his gout, and he was given an increased dose of prednisone for two days. VA treatment records from May 2012, note that based on imaging studies, the Veteran did not have gout of the left hand presently. October 2012 records describe the Veteran’s gout as “was well controlled until October 2011,” where the Veteran described the “worst flare of his life” involving his right foot, knees, hands, and shoulders. The Veteran reported a mild flare that occurred three weeks prior to this visit, which was easily controlled with a steroid burst. Upon VA examination in October 2012, the examiner noted that there were no major flare ups since October 2011. The Veteran stated he avoided excessive drinking and other foods such as chocolate. He required three to four treatments of prednisone by his primary care physician for attacks that have since resolved. The examiner indicated that the Veteran’s disability as manifest by three non-incapacitating episodes per year, with the most recent one being in October 2011, lasting seven days. The Veteran described his non-incapacitating exacerbation as a red, painful, swollen, inflamed right great toe and dorsal foot that is tender to touch and during weight-bearing. Upon physical examination, the examiner noted that the Veteran’s condition was well controlled on medication and that there was no current evidence of gout in his hands or feet. VA treatment records from November 2014 state that the Veteran’s activities of daily living were not limited by gout, but rather his heart failure, and that he had not experienced flares for the past five months. Additionally, April 2015 VA treatment records note that the Veteran’s gout was well controlled on his current treatment plan, however the clinician felt that the Veteran’s episodes of pain were related to old damage rather than active inflammation. At the July 2015 VA examination, the examiner noted that the Veteran’s gout was continued to be treated with medication, but his condition was stable. He suffered two non-incapacitating episodes per year, with the most recent being in June 2014, when his right great toe flared-up, which he described as red, hot, swollen joints, which resolved with treatment. There was no evidence of incapacitating episodes nor weight loss, or symptoms that were productive of impairment of health objectively supported by examination findings. Neither was there evidence that the Veteran’s gout involved any other systems other than joints. Lastly, there was no current evidence of gout in his hands or feet upon physical examination, as the examiner stated the Veteran’s diagnosed gout was well controlled and asymptomatic with episodic flare-ups. Recent VA treatment records from March 2018 note that the Veteran no longer required a daily gout medication as his condition did not require one. Additional records, note that his last attack was one-month prior in February 2018. Thus, the Board finds that entitlement to a rating in excess of 20 percent for service-connected gout is not warranted. To this point, the Board notes that there was no evidence of incapacitating episodes at any point during the appeal period. However, the Veteran was known to have approximately three to four non-incapacitating episodes per year, characterized by pain, redness, and swelling. For the majority of the rating period, the Veteran’s gout was described as asymptomatic with intermittent flare ups, particularly as the 2018 clinician noted that the Veteran did not require the continuous use of gout medications anymore. Moreover, the Veteran himself does not allege, nor is there any objective evidence of joint deformities, involvement of systems other than the joints, constitutional manifestations associated with active joint involvement which were totally incapacitating, or weight loss with anemia productive of severe impairment of health. 38 C.F.R. § 4.71a, DC 5002. 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. § 5107; 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). Therefore, entitlement to a rating in excess of 20 percent for service-connected gout is denied. REASONS FOR REMAND Remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Entitlement to service connection for a heart disability claimed as due to in-service herbicide exposure is remanded. VA should attempt to verify the Veteran’s exposure to herbicides in Korea. Moreover, the April 2012 VA examiner failed to provide an etiological opinion determining whether the Veteran’s diagnosed heart disability has any relation to his period of active military service. Once VA undertakes a duty to provide a medical examination, due process requires an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, a remand is necessary for another examination. The examiner should provide adequate rationale for any opinion rendered. 2. Entitlement to compensation for a heart disability pursuant to 38 U.S.C. § 1151 is remanded. As the Veteran is undergoing an additional cardiovascular examination, the Board finds that this claim is inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, further consideration of the claim must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The matters are REMANDED for the following action: 1. The RO should attempt to verify the Veteran’s exposure to herbicides in Korea. 2. Afford the Veteran an additional VA examination to determine the nature and etiology of his claimed heart disability. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed heart disability began in service, was caused by service, or is otherwise related to the Veteran’s period of active service, to include any confirmed in-service herbicide exposure. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel