Citation Nr: 18151879 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 14-04 935 DATE: November 20, 2018 ORDER Service connection for an acquired psychiatric disorder, to include recurrent major depressive disorder (depression), is granted. A rating of 60 percent, but no higher, for gout is granted throughout the appeal. FINDINGS OF FACT 1. The Veteran’s depression had its onset in service. 2. Throughout the appeal, the Veteran’s gout has manifested with symptoms that more closely approximate severe incapacitating exacerbations four or more times per year or a lesser number over prolonged periods. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depression are met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.303. 2. The criteria for a 60 percent disability rating, but no higher, for gout are met throughout the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes (DCs) 5002, 5017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1972 to November 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and September 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board videoconference hearing, which was scheduled for May 2017. The Veteran did not report for his hearing or provide good cause for not reporting, and has not requested a new hearing. The Veteran’s hearing request is therefore deemed withdrawn. See 38 C.F.R. § 20.704. Additional pertinent evidence was received subsequent to the April 2014 Supplemental Statement of the Case, including VA treatment records and an October 2017 VA examination report. The Veteran has provided a waiver of RO jurisdiction and requested that the Board provide a decision incorporating this additional evidence. See September 2018 Correspondence. 1. Service Connection for Depression The Veteran asserts that his psychiatric disorder is related to his military service. Specifically, he asserts that his current psychiatric symptoms are related to his in-service diagnoses of adjustment disorder and acute paranoid disorder with depression, and that VA is obligated to address all forms of psychosis. See February 2014 VA Form 9. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain chronic diseases, such as psychoses (defined by VA as including brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder; and substance/medication-induced psychotic disorder), may be presumed to have been incurred or aggravated during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying active service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309, 3.384. In February 1987, the Veteran was admitted to the psychiatric unit of a VAMC hospital after expressing self-destructive thoughts following acute marital conflict. He was diagnosed with adjustment disorder with depressed mood. The hospitalization report indicates that the Veteran did not receive medication and was released to full duty less than a week later. The report states that the Veteran’s wife, a “Psychiatric Registered Nurse,” was present at the hospital and cooperated with the staff. See Service Treatment Records (STRs). The Veteran completed a “Report of Medical History” in connection with an April 1987 physical examination conducted for an extension of his enlistment. He reported that he was in good health and not taking any medication, and endorsed symptoms of “[d]epression or excessive worry,” which he had not endorsed at any previous physical examination. The Veteran also indicated that he had been hospitalized for depression related to family problems. The examiner noted “no depression [at] this time [as the Veteran’s] personal problem [has] resolved.” Id. Approximately one week later, the Veteran was referred for a psychiatric examination following another episode of marital conflict, where he exhibited delusional thinking and pathological jealousy with respect to his wife. He was given a provisional diagnosis of acute paranoid disorder with depression. Following a psychiatric interview, the Veteran was diagnosed with adjustment disorder with mixed emotional features and was referred to marital therapy. Id. A chronological record of medical care indicates that the Veteran attended counseling sessions with a social worker in June, August, and October 1987. His case was re-opened by a different social worker in February 1989, and he was also counseled in March 1989. Id. The Veteran denied ever having had “depression or excessive worry” in the “Report of Medical History” he completed in connection with his 1992 retirement examination. He endorsed a “yes” answer to “Have you ever been treated for a mental condition?” and initially endorsed a “yes” answer to the question “Have you ever been a patient in any type of hospital?” but crossed out that endorsement. While each question asked for details if a “yes” answer was endorsed, the Veteran did not provide any in response to either question. Id. The Veteran was referred to VA mental health services in March 2013 after reporting symptoms of paranoia to his primary care physician. At his VA mental health intakes, he reported that he had experienced symptoms of depression “off and on” since his retirement from the Navy in 1992. The Veteran stated that he had not been able to gain employment since his retirement, that he had to force himself to perform household tasks and chores to manage his mood, and reported that he felt okay when active but when inactive he tended to ruminate and become depressed. He relayed his history of in-service psychiatric hospitalization, reported that he was prescribed anti-depressants for six months, and stated that his symptoms of depression remitted after he and his wife worked through his problems and he went back to work. The Veteran also reported that his children were the most important thing in his life. The VA clinician diagnosed the Veteran with recurrent major depressive disorder and prescribed an anti-depressant. See VA Treatment Notes. The Veteran presented for a VA psychiatric examination in September 2013. The examiner noted that the Veteran’s STRs show that after he became paranoid and made threats towards his wife, he was admitted to a psychiatric hospital in February 1987 where he was diagnosed with adjustment disorder with depressed mood. The examiner noted that the Veteran was not diagnosed as paranoid or otherwise psychotic, and that he was treated with psychotherapy in service, but not with psychotropic medicines. He reported that the Veteran had not sought psychiatric treatment since he left the Navy. See September 2013 VA Examination Report. The VA examiner diagnosed the Veteran with major depressive disorder and opined that the Veteran’s depression was less likely than not related to his military service. The examiner explained that the Veteran’s in-service diagnosis was for an adjustment disorder, which is by definition a limited-time condition, and that it appeared that the Veteran’s adjustment disorder had resolved as the Veteran had not needed psychiatric care since 1987. Id. The Veteran’s wife and daughter submitted statements in May 2014 describing their observations of the Veteran’s behavior. The Veteran’s wife, a registered nurse with psychiatric experience, reported that her husband’s behavior had changed since he retired from the Navy and that he seemed like a different person. She stated that his gout triggered his depression and caused him to isolate from friends and family, and to avoid activities that he previously enjoyed. She also explained that her husband was a proud person, and that she believed he did not seek treatment for his depression earlier because of the stigma of mental illness and the shame that he would have felt in front of his children and other relatives. The Veteran’s daughter likewise reported that the Veteran was a proud person, and that while he had once been active and productive he became unmotivated and no longer attended to his obligations or to his personal appearance. See May 2014 Statements. Initially, the Board acknowledges the Veteran’s request that VA “address all forms of psychosis.” See February 2014 VA Form 9. While the Veteran was given a provisional diagnosis with acute paranoid disorder with depression in April 1987, there is no current diagnosis of psychosis in the record. Accordingly, he is not entitled to service connection on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309, 3.384. However, and as explained below, the Board concludes that the Veteran is entitled to direct service connection. The Board finds that the Veteran has a current diagnosis of depression, and that he exhibited psychiatric symptoms during service. Thus, the first two elements of direct service connection have been established, and the key issue is whether the Veteran’s current depression is related to his in-service psychiatric symptoms. Based on the evidence of record, the Board finds that the Veteran’s depression had its onset in service. The Board finds that the opinion of the September 2013 VA psychiatric examiner that the Veteran’s depression is less likely than not related to his service is entitled to no probative weight. The examiner only discussed the Veteran’s February 1987 psychiatric hospitalization, but did not acknowledge or discuss the April 1987 episode of psychiatric symptoms documented in the Veteran’s STRs, nor that the Veteran’s case was re-opened by a social worker in 1989. Thus, it appears that his opinion was founded on an inaccurate factual basis. Moreover, the examiner’s rationale that the Veteran’s in-service condition was an adjustment disorder of limited duration is undermined by the Veteran’s documented and recurrent in-service treatment for his psychiatric symptoms. Conversely, the probative evidence of record indicates that the Veteran’s depression had its onset in service. The Veteran’s VA mental health clinicians diagnosed the Veteran with recurrent major depressive disorder based on his reported in-service depression and his report that he experienced depressive symptoms “on and off” since his military retirement. See VA Treatment Notes. The Board finds that this diagnosis of “recurrent” major depressive disorder includes an implicit opinion linking the Veteran’s current depression with his in-service depression. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating it is “the responsibility of the trier of fact fairly to... draw reasonable inferences from basic facts to ultimate facts”); Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”); cf. September 2013 VA Examination (diagnosing Veteran with major depressive disorder). Moreover, the Veteran’s wife has provided competent evidence linking the Veteran’s depression to service through her May 2014 Statement. The Board acknowledges that the Veteran did not receive psychiatric treatment for many years since his military retirement, and that his STRs only show isolated instances of treatment for psychiatric symptoms. The Board observes that during the Veteran’s military service, mental illness carried a stigma that could have negatively impacted or even prematurely ended the Veteran’s career, which would have motivated him to conceal psychiatric symptoms or to attribute them to transitory events. In this regard, the Board observes that the Veteran was reluctant to report or discuss his documented psychiatric hospitalization during his retirement medical examination. See Retirement Examination. As the Veteran had 15 years of service and was a senior enlisted servicemember when his symptoms were first observed, the Board finds his failure to report depressive symptoms during military service to be consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). Moreover, the competent and credible observations from the Veteran’s wife and daughter explain the Veteran’s lack of psychiatric treatment after his military retirement despite experiencing “off and on” depressive symptoms. Therefore, the Board finds that the Veteran’s depression had its onset in service, and concludes that he is entitled to service connection for an acquired psychiatric disorder (to include recurrent major depressive disorder). 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.303. 2. Increased Rating for Gout Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran’s gout is currently rated under 38 C.F.R. 4.71a, DC 5017 (Gout), which directs that gout be rated under the criteria for rheumatoid arthritis (DC 5002). Under 38 C.F.R. § 4.71a, DC 5002, disability ratings are assigned based on whether gout is an active process or manifested by chronic residuals. The appeal period is from the date that the Veteran’s claim for an increased rating was received, December 16, 2010, plus the one-year look-back period. For gout as an active process, a 100 percent rating is assigned for constitutional manifestations associated with active joint involvement, totally incapacitating. A 60 percent rating is assigned where manifestations are less than the criteria for a 100 percent rating, 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 rating is assigned with symptom combinations productive of definite impairment of health objectively supported by examination findings; or, incapacitating exacerbations occurring three or more times a year. For chronic residuals, DC 5002 permits evaluation based on limitation of motion or ankylosis, favorable or unfavorable, of specific joints affected consistent with applicable diagnostic codes. Where however, the limitation of motion of the specific joint or joints involved is otherwise noncompensable, 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 DC 5002. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A Note to the Code provides that the rating for an active process cannot be combined with ratings for residuals based on limitation of motion or ankylosis; instead, the higher rating is to be assigned. The Board finds that based on the evidence of record, the Veteran’s gout has manifested throughout the appeal period with symptoms that more closely approximate severely incapacitating exacerbations four or more times per year or a lesser number over a prolonged period. The Board notes that the evidence of record indicates the Veteran’s gout has manifested with frequent and severely painful flare-ups that result in functional limitations due to severe pain, inflammation, and limited mobility. The evidence shows that the Veteran has been on physician-prescribed medication for his gout, but it has only provided partial relief of his pain and inflammation, particularly during flare-ups. The Veteran’s VA medical records show a long history of frequent, and at times severe, gout exacerbations. The Veteran experienced gout exacerbations as often as twice monthly, and generally at least once every other month. At times, his symptoms required the use of crutches due to constant pain, including severe pain on walking. His primary care clinicians instructed him to report to the ER on multiple occasions due to his gout, and his VA rheumatologist specifically noted that the Veteran experienced “very frequent gout flares” and lab results outside normal limits, despite the Veteran having a normal BMI and taking medication. During gout exacerbations, the Veteran was unable to garden (either recreationally or professionally) due to gout symptoms in combinations of his feet, ankles, elbows, hands, and fingers. The Veteran submitted a statement in February 2011 in support of his claim for an increased rating. He reported that his gout had spread, and that he was experiencing symptoms in both feet and his left elbow. He also reported a numb sensation in his left index finger. See February 2011 VA Form 21-4138. The Veteran presented for a VA examination in February 2011. The examiner diagnosed gout of both feet, both ankles, and the left elbow. During the examination, the Veteran reported he was presently experiencing pain of both feet on walking as a four on a scale of one to ten, with no pain of the left elbow or left ankle or during daily life activities at that time. The Veteran reported that during a flare-up he could not work for three days until the inflammation subsided. The examiner reported that the Veteran had functional impairment of both feet due to pain, and reported a normal range of motion of the left ankle and elbow, and that range of motion is not further limited due to fatigue, weakness, lack or endurance, or incoordination after repetitive use or during flare-ups. See February 2011 VA Examination Report. Pursuant to an October 2011 rating decision, the Veteran’s disability evaluation for gout was increased from 10 percent to 20 percent. In October 2012, the Veteran disagreed with that rating, stating that he suffered from multiple incapacitating episodes of gout annually. See October 2012 Notice of Disagreement. The Veteran presented for another VA examination in April 2014. The examiner completed VA-promulgated disability benefits questionnaires (DBQs) focused on the feet, ankles, and elbows and forearms. The Veteran reported gout flares that occurred once every other month productive of pain. The examiner noted bilateral foot pain and noted that the Veteran’s condition interfered with his ability to work. He noted normal bilateral ankle range of motion, observed left ankle pain or tenderness on palpitation, and reported that the Veteran’s ankle condition did not affect his ability to work. The examiner also diagnosed the Veteran with mild left elbow arthritis, observed a normal range of motion, reported tenderness or pain on palpitation, and opined that the Veteran’s left elbow might interfere with the Veteran’s ability to work during his flare-ups that occurred every other month. See April 2014 VA Examination Report. In August 2017, the Veteran reported that his gout had increased in severity. He reported gout in both hands, both elbows, and both feet. See August 2017 VA Form 21-526EZ. The Veteran presented for a further VA examination in October 2017. The examiner completed a DBQ focused on non-degenerative arthritis. The Veteran reported having gout for thirty years, with flare-ups originally involving the ankles and big toes, and that now affected the wrists, hands, and left elbow. He reported that he was experiencing a gout flare that began almost two months prior to the examination. The examiner noted that the Veteran had stopped seeing his rheumatologist for a year because he did not feel like he was being well served by telehealth, but that he had recently been treated by a VA rheumatologist. See October 2017 Arthritis DBQ. The Veteran reported pain in both wrists, both hands and their fingers, both ankles, both feet, and the left elbow. The examiner reported gout-related limitation of motion of both hands and fingers, as well as the right ankle and left wrist. The examiner stated that the Veteran experienced two non-incapacitating exacerbations of “arthritis” per year, and that the Veteran was presently experiencing an exacerbation that began seven weeks earlier, manifested by pain of the left wrist and both metacarpal phalanges with reduced range of motion. He indicated that the Veteran’s exacerbations were not incapacitating or manifested by constitutional manifestations that were totally incapacitating, that his “arthritis” was not manifested by weight loss and anemia productive of severe impairment of health, that his “arthritis” was not manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings, and that his “arthritis” was not manifested by severely incapacitating exacerbations occurring four or more times a year, or a lesser number over prolonged periods. The examiner also noted that the Veteran’s gout flare interfered with gripping, holding objects, making a fist, or similar activities. Id. The examiner also completed DBQs focused on conditions of the hands and fingers, wrists, elbows and forearms, ankles, and feet. The examiner found limitation of motion in both the Veteran’s hands and their fingers, his left wrist, and both ankles; however, the examiner did not attribute the left ankle limitation of motion to gout, despite the Veteran’s history of left ankle gout pain. He also noted pain in the Veteran’s left elbow productive of functional loss with no limitation of motion, as well as bilateral foot arthritis and a history of bilateral foot pain, but with no active flare at the time of examination. The examiner reported performing testing on active and passive motion, with and without repetitive testing, and in weight-bearing and nonweight-bearing, on all joints where the Veteran reported gout and on the opposite joints. The examiner noted that the Veteran’s restricted movements of the hands and fingers produced functional loss due to an inability to grip or make a fist, that his left wrist gout limited lifting or movement due to pain and restricted movement, that his foot and ankle pain would limit walking and standing during a gout flare, and that his left elbow pain would interfere with heavy lifting, carrying, repetitive use, and movement of the left arm. The examiner explained that he could not provide an opinion regarding additional limitation of motion loss during a flare, as any further estimate of limitation of motion would be entirely speculative. The examiner did not report ankylosis of any joints. See October 2017 DBQs. Based on the evidence of record, the Board finds that the Veteran’s gout symptoms more closely approximate severely incapacitating episodes four or more times a year, or a lesser number over prolonged period. The Veteran’s gout has manifested with frequent and often severe flare-ups productive of severe pain and limited mobility in multiple major joint and groups of minor joints, and his clinicians have at times directed him to report to the emergency room as a result. Moreover, during the Veteran’s gout flare-ups he is unable to garden, which was his most recent occupation. Additionally, the Veteran has experienced frequent and severe gout symptoms for a prolonged period. After resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s gout symptoms more closely approximate severely incapacitating episodes four or more times a year, or a lesser number over prolonged period, and thus concludes that the Veteran is entitled to a 60 percent rating for gout throughout the appeal. See 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, DC 5002. In this regard, the Board emphasizes that this rating is based on symptoms over a prolonged period, and finds that a staged rating would be inappropriate. The Board has considered rating the Veteran on the basis of limitation of motion from chronic residuals of gout. However, the Board has determined that, based on the evidence of record, it cannot award the Veteran a higher evaluation by rating the Veteran on that basis. The Board acknowledges that the October 2017 VA examiner opined that the Veteran’s gout was not productive of incapacitating exacerbations, nor of four or more severely incapacitating exacerbations per year or a lesser number over prolonged periods. The Board notes that the term “incapacitating” is not defined in the Rating Schedule, but that in other contexts in the Rating Schedule it appears to have a meaning more akin to “totally incapacitating.” See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (incapacitating episode involves acute signs and symptoms requiring physician-prescribed bed rest). This is clearly not the case under DC 5002, which provides different ratings for symptoms or exacerbations depending on whether they are “incapacitating,” “severely incapacitating,” or “totally incapacitating.” See 38 C.F.R. § 4.71a, DC 5002. In applying the facts to the law, the Board has determined that the despite the October 2017 VA examiner’s response to that DBQ question, the Veteran’s symptoms constituted “severely incapacitating” exacerbations during the appeal period. See, e.g., Floore v. Shinseki, 26. Vet. App. 376, 381 (2013) (“medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for ‘interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,’ 38 C.F.R. § 4.2 (2013).”). Conversely, the Board finds that the Veteran is not entitled to a total disability rating for gout. In this regard, the Board notes that the evidence of record shows that the Veteran’s gout has not resulted in anemia or weight loss, and that his gout does not involve body systems other than his joints. See October 2017 DBQ. Therefore, the Board finds that the evidence of record does not show constitutional manifestations associated with active joint involvement, which is a necessary aspect of a total disability rating for gout. See 38 C.F.R. § 4.71a, DC 5002. Moreover, and as noted above, the Board has interpreted the October 2017 VA examiner’s opinion regarding incapacitation as concerning total incapacitation. See supra. Thus, the medical evidence is against finding either element necessary for a total disability evaluation to be present. As the Veteran’s gout symptoms do not more closely approximate the criteria for a total disability evaluation, the Board concludes that the criteria for a total disability evaluation for gout have not been met. See 38 C.F.R. §§ 4.7, 4.71a, DC 5002. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel