Citation Nr: 19154014
Decision Date: 07/16/19	Archive Date: 07/12/19

DOCKET NO. 14-06 410
DATE:	July 16, 2019

ORDER

Entitlement to initial compensable ratings prior to January 9, 2018, for service-connected bilateral hammer toes is denied.

Entitlement to an initial rating of 80 percent for service-connected gout is granted, effective December 29, 2010 to January 8, 2018, subject to the laws and regulations governing payment of monetary benefits.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout with left elbow olecranon bursitis, medial epicondylitis, degenerative arthritis, and olecranon spur (gout of the left elbow) based on limitation of flexion is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout of the left elbow based on limitation of supination and/or pronation is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout with right elbow degenerative arthritis and olecranon spur (gout of the right elbow) based on limitation of extension is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout of the right elbow based on limitation of supination and/or pronation is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout with left wrist sprain (gout of the left wrist) is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout with right wrist sprain (gout of the right wrist) is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout of the left hand with gamekeeper thumb, degenerative arthritis, and hand sprain with limitation of motion of the thumb (gout of the left thumb), is denied.

Entitlement to a compensable rating from January 9, 2018, for service-connected gout of the left hand with limitation of motion of the index or middle finger is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout of the right hand with gamekeeper thumb, degenerative arthritis, and hand sprain with limitation of motion of the thumb (gout of the right thumb), is denied.

Entitlement to a compensable rating from January 9, 2018, for service-connected gout of the right hand with limitation of motion of the index or middle finger is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout with left knee strain, osteoarthritis, and patellofemoral pain syndrome (gout of the left knee) based on limitation of flexion is denied.

Entitlement to a compensable rating from January 9, 2018, for service-connected gout of the left knee based on limitation of extension is denied.

Entitlement to a 20 percent disability rating for service-connected gout of the left knee based on instability is granted, effective January 9, 2018, subject to the laws and regulations governing payment of monetary benefits.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout with right knee strain and osteoarthritis (gout of the right knee) based on limitation of flexion is denied.

Entitlement to a compensable rating from January 9, 2018, for service-connected gout of the right knee based on limitation of extension is denied.

Entitlement to a 20 percent disability rating for service-connected gout of the right knee based on instability is granted, effective January 9, 2018, subject to the laws and regulations governing payment of monetary benefits.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout with left ankle lateral collateral ligament sprain (gout of the left ankle) is denied.

Entitlement to a rating in excess of 10 percent from January 9, 2018, for service-connected gout with right ankle lateral collateral ligament sprain (gout of the right ankle) is denied.

Entitlement to a rating in excess of 30 percent from January 9, 2018, for service-connected gout of the left foot with hammer toes is denied.

Entitlement to a rating in excess of 30 percent from January 9, 2018, for service-connected gout of the right foot with hammer toes is denied.

REMANDED

Entitlement to an initial compensable rating for service-connected bilateral hearing loss is remanded.

FINDINGS OF FACT

1. Prior to January 9, 2018, the preponderance of the evidence of record fails to demonstrate that the Veteran’s bilateral hammer toe disability was manifested in all toes of either foot.

2. Resolving all reasonable doubt in the Veteran’s favor, from December 29, 2010, to January 8, 2018, his service-connected gout was manifested by chronic residuals, including limitation of motion of the elbows, wrists, hands, knees, ankles, and feet that has been objectively confirmed by findings of swelling and/or satisfactory evidence of painful motion; however, the evidence of record fails to demonstrate constitutional manifestations associated with active joint involvement, totally incapacitating.

3. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in a chronic residuals of the left elbow manifested by ankylosis; flexion limited to 90 degrees or less; extension limited to 45 degrees or more; motion lost beyond the last quarter of the arc, with the hand not approach full pronation; or motion lost beyond the middle of the arc.

4. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in a chronic residuals of the right elbow manifested by ankylosis; flexion limited to 90 degrees or less; extension limited to 45 degrees or more; motion lost beyond the last quarter of the arc, with the hand not approach full pronation; or motion lost beyond the middle of the arc.

5. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in chronic residuals of the left wrist manifested by ankylosis.

6. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in chronic residuals of the right wrist manifested by ankylosis.

7. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in chronic residuals of the left hand manifested by ankylosis of any finger; limitation of motion of the thumb with a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; or limitation of motion of either the index or long (middle) finger with a gap less than one inch between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; or limitation of extension of either the index or long (middle) finger by more than 30 degrees.

8. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in chronic residuals of the right hand manifested by ankylosis of any finger; limitation of motion of the thumb with a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; or limitation of motion of either the index or long (middle) finger with a gap less than one inch between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; or limitation of extension of either the index or long (middle) finger by more than 30 degrees.

9. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in chronic residuals of the left knee manifested by ankylosis; flexion limited to 30 degrees; or extension limited to 10 degrees.

10. From January 9, 2018, to the present, the evidence of record demonstrates moderate instability of the left knee.

11. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in chronic residuals of the right knee manifested by ankylosis; flexion limited to 30 degrees; or extension limited to 10 degrees.

12. From January 9, 2018, to the present, the evidence of record demonstrates moderate instability of the right knee.

13. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in chronic residuals of the left ankle manifested by ankylosis or marked limitation of motion.

14. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout resulted in chronic residuals of the right ankle manifested by ankylosis or marked limitation of motion.

15. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout of the left foot with hammer toes resulted in chronic residuals manifested by loss of use of the foot.

16. From January 9, 2018, to the present, the preponderance of the evidence fails to demonstrate that the Veteran’s service-connected gout of the right foot with hammer toes resulted in chronic residuals manifested by loss of use of the foot.

CONCLUSIONS OF LAW

1. Prior to January 9, 2018, the criteria for initial compensable ratings for service-connected bilateral hammer toes are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282 (2018).

2. From December 29, 2010, to January 8, 2018, the criteria for an initial 80 percent disability rating, but no higher, for service-connected gout are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.25, 4.26, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5002, 5017 (2018).

3. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the left elbow based on limitation of flexion are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5206, 5207 (2018).

4. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the left elbow based on limitation of supination and/or pronation are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5213 (2018).

5. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the right elbow based on limitation of extension are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5206, 5207.

6. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the right elbow based on limitation of supination and/or pronation are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5213.

7. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the left wrist are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5215 (2018).

8. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the right wrist are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5215.

9. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the left thumb are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5228 (2018).

10. From January 9, 2018, the criteria for a compensable rating for service-connected gout of the left hand with limitation of motion of the right or middle finger are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5229 (2018).

11. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the right thumb are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5228.

12. From January 9, 2018, the criteria for a compensable rating for service-connected gout of the right hand with limitation of motion of the right or middle finger are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5229.

13. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the left knee based on limitation of flexion are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5260 (2018).

14. From January 9, 2018, the criteria for a compensable rating for service-connected gout of the left knee based on limitation of extension are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5261 (2018).

15. From January 9, 2018, the criteria for a 20 percent disability rating, but no higher, for service-connected gout of the left knee based on instability are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5257 (2018).

16. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the right knee based on limitation of flexion are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5260.

17. From January 9, 2018, the criteria for a compensable rating for service-connected gout of the right knee based on limitation of extension are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5261.

18. From January 9, 2018, the criteria for a 20 percent disability rating, but no higher, for service-connected gout of the right knee based on instability are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5257.

19. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the left ankle are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5271 (2018).

20. From January 9, 2018, the criteria for a rating in excess of 10 percent for service-connected gout of the right ankle are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5271.

21. From January 9, 2018, the criteria for a rating in excess of 30 percent for service-connected gout of the left foot with hammer toes are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5167, 5284 (2018).

22. From January 9, 2018, the criteria for a rating in excess of 30 percent for service-connected gout of the right foot with hammer toes are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5167, 5284.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1968 to June 1997.

By way of background, the Veteran’s claim for service connection for gout was received on December 29, 2010.  On February 15, 2011, VA received his claim for service connection for bilateral hammer toes.

In the May 2012 rating decision on appeal, the agency of original jurisdiction (AOJ) granted service connection for gout (to include toes, feet, knees, elbows, and hands), and assigned an initial 20 percent disability rating under Diagnostic Code 5017, effective December 29, 2010.  It also granted service connection for bilateral hammer toes, and assigned an initial noncompensable rating under Diagnostic Code 5282, effective February 15, 2011.  Thereafter, the Veteran expressed disagreement with the initially assigned ratings.  He subsequently perfected his appeal to the Board.

In November 2017, the Board remanded the appeal to the AOJ for further development.  In a February 2019 rating decision, the AOJ discontinued the Veteran’s 20 percent disability rating for gout under Diagnostic Code 5017 and his noncompensable rating for bilateral hammer toes under Diagnostic Code 5282.  Instead, the AOJ assigned disability ratings to the following individual joints affected by the Veteran’s service-connected gout, all effective January 9, 2018: gout of the left foot with hammer toes, rated as 30 percent disabling under Diagnostic Code 5017-5284; gout of the right foot with hammer toes, rated as 30 percent disabling under Diagnostic Code 5017-5284; gout of the left thumb, rated as 10 percent disabling under Diagnostic Code 5017-5228; gout of the right thumb, rated as 10 percent disabling under Diagnostic Code 5017-5228; gout of the left ankle, rated as 10 percent disabling under Diagnostic Code 5017-5271; gout of the left elbow based on impairment of supination and/or pronation, rated as 10 percent disabling under Diagnostic Code 5213; gout of the left elbow based on impairment of flexion, rated as 10 percent disabling under Diagnostic Code 5017-5206; gout of the left knee based on limitation of flexion, rated as 10 percent disabling under Diagnostic Code 5017-5260; gout of the left wrist, rated as 10 percent disabling under Diagnostic Code 5017-5215; gout of the right ankle, rated as 10 percent disabling under Diagnostic Code 5017-5271; gout of the right elbow based on impairment of extension, rated as 10 percent disabling under Diagnostic Code 5017-5207; gout of the right elbow based on impairment of supination and/or pronation, rated as 10 percent disabling under Diagnostic Code 5213; gout of the right knee based on instability, rated as 10 percent disabling under Diagnostic Code 5017-5257; gout of the right knee based on limitation of flexion, rated as 10 percent disabling under Diagnostic Code 5017-5260; gout of the right wrist, rated as 10 percent disabling under Diagnostic Code 5017-5215; gout of the left knee based on instability, rated as 10 percent disabling under Diagnostic Code 5017-5257; gout of the left index and middle fingers, rated as noncompensable under Diagnostic Code 5230-5017; gout of the right index and middle fingers, rated as noncompensable under Diagnostic Code 5230-5017; gout of the left knee based on limitation of extension, rated noncompensable under Diagnostic Code 5017-5260; and gout of the right knee based on limitation of extension, rated noncompensable under Diagnostic Code 5017-5260.  The Veteran’s combined disability rating is 100 percent, effective January 9, 2018.

A.  Pertinent Rules and Regulations

Disability evaluations 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.

A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14 (2018).  However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2018).

Diagnostic Code 5017 directs that gout is rated under the criteria for rheumatoid arthritis.  Under Diagnostic Code 5002 for rheumatoid arthritis, a disability rating is assigned based on whether there is an active process or manifested by chronic residuals.  For an active process, a 100 percent rating is warranted for constitutional manifestations associated with active joint involvement, totally incapacitating.  A 60 percent rating is warranted for manifestations less than those required for a 100 percent disability rating 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.  A 40 percent rating is warranted 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 20 percent rating is warranted for one or two exacerbations a year in a well-established diagnosis. 38 C.F.R. § 4.71a.

For chronic residuals, Diagnostic Code 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 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.  Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A note provides that the rating for active process cannot be combined with that for residuals based on limitation of motion or ankylosis; rather, the higher rating is to be assigned.

When read in light of 38 C.F.R. § 4.59, a minimum rating per joint is authorized under Diagnostic Code 5002 where there is painful, albeit nonlimited, motion. Petitti v. McDonald, 27 Vet. App. 415, 426 (2015). The “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). In Petitti, the Court held that Diagnostic Code 5002’s requirement of “objective confirmed” was satisfied by corroboration by a person other than the veteran based upon that person’s observations, including lay statements.  Petitti, 27 Vet App. at 427-428.

For purposes of the Rating Schedule, major joints are considered to be the shoulder, elbow, wrist, hip, knee, and ankle.  Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities; the interphalangeal, metatarsal and tarsal joints of the lower extremities; the cervical vertebrae; the dorsal vertebrae; and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints.  See 38 C.F.R. § 4.45.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.”  Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.”  Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.

Under Diagnostic Code 5206, a 10 percent disability rating is warranted for limitation of flexion of either the major or minor forearm to 100 degrees; a 20 percent disability rating is warranted for limitation of flexion of either the major or minor forearm to 90 degrees; limitation of flexion of the major and minor forearm to 70 degrees warrants 30 and 20 percent ratings, respectively; limitation of flexion of the major and minor forearm to 55 degrees warrants 40 and 30 percent ratings, respectively; and limitation of flexion of the major and minor forearm to 45 degrees warrants 50 and 40 percent ratings, respectively. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5207, a 10 percent disability rating is warranted when extension is limited to either 45 or 60 degrees for both the major and minor elbow; a 20 percent disability rating is warranted when extension is limited to 75 degrees for both the major and minor elbow; a 20 percent disability rating is warranted when extension is limited to 90 degrees for the minor elbow; a 30 percent disability rating is warranted when extension is limited to 90 degrees for the major elbow; a 30 percent disability rating is warranted when extension is limited to 100 degrees for the minor elbow; a 40 percent disability rating is warranted when extension is limited to 100 degrees for the major elbow; a 40 percent disability rating is warranted when extension is limited to 110 degrees for the minor elbow; and a 50 percent disability rating is warranted when extension is limited to 110 degrees for the major elbow. Id.

Under Diagnostic Code 5213, a 10 percent disability rating is warranted for limitation of supination to 30 degrees or less for the major or minor arm. A 20 percent rating is warranted both the major and minor arms for limitation of pronation with motion lost beyond last quarter of arc, where the hand does not approach full pronation. For limitation of pronation with motion lost beyond middle of arc, a 30 percent rating is warranted for the major arm and a 20 percent rating is warranted for the minor arm. Id.

Diagnostic Code 5215, applicable to limitation of motion of the wrist, provides for the assignment of a 10 percent disability rating with dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. The 10 percent rating is the maximum rating provided under Diagnostic Code 5215. Id.

Limitation of motion of the individual fingers is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5228, 5229, and 5230. Diagnostic Code 5228, for limitation of motion of the thumb, provides for a noncompensable rating when there is a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  A 10 percent disability rating is warranted when there is a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A maximum 20 percent disability rating is warranted when there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  Id.

Under Diagnostic Code 5229, for limitation of motion of the index or long finger, a noncompensable rating is for application when a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, and; extension is limited by no more than 30 degrees. A maximum 10 percent disability rating is for application when there is a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Id.

Diagnostic Code 5230 provides for a maximum noncompensable rating for limitation of motion of the ring or little finger.  Id.

Under Diagnostic Code 5257, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability of the knee; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. Id.

Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion of the knee limited to 30 degrees; and a 30 percent rating is warranted for flexion of the knee limited to 15 degrees.  Id.

Under Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension of the knee limited to 15 degrees; a 30 percent rating is warranted for extension of the knee limited to 20 degrees; a 40 percent for extension of the knee limited to 30 degrees, and 50 percent for extension of the knee limited to 45 degrees. Id.

Under Diagnostic Code 5271 limitation of motion of an ankle warrants a 10 percent rating when moderate and 20 percent when marked. Id.  Full dorsiflexion is to 20 degrees and full plantar flexion is to 45 degrees. See id., Plate II. 

Under Diagnostic Code 5282, hammer toes warrant a noncompensable rating for single toes, and a 10 percent rating for all toes, unilateral without claw foot. Id.

Under Diagnostic Code 5284, other foot injuries warrant a 10 percent rating when moderate, a 20 percent rating when moderately severe, and a 30 percent rating when severe. A 40 percent rating is warranted where there is actual loss of use of the foot. Id.

The Board observes that the words “mild,” “moderate,” “marked,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. 

B.  Facts

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

An October 2010 private treatment record noted the Veteran’s report of right elbow pain and swelling, which was noted to be a questionable flare-up of gout.  The Veteran was noted to have a longstanding history of gout.  He denied limitation with motion, but stated that swelling was quite bothersome.  Upon examination, there was a large palpable effusion to the right olecranon, no erythema or evidence for infection, he was able to achieve full elbow extension, and there was no pain at the extremes.

A January 2011 private treatment record noted that the Veteran continued to experience gout, that he was currently receiving treatment, and that his uric acid level had increased to 7.9, with a normal range of 2.6 to 7.2.

Another January 2011 private treatment record noted the Veteran’s report of a painful right foot that began two weeks ago and was accompanied by redness and swelling.  Upon examination there was no pain with palpation of the right foot, and there was no pain with range of motion of the ankle or midtarsal joint.  There were rigid dorsally contracted digits two through five bilaterally.  There was no evidence of edema or erythema, and X-rays revealed no fractures or dislocations, gas in the subcutaneous tissue, or osseous lesions.  He was diagnosed with gout right foot resolving, paresthesias in the bilateral feet, and hammer toes two through five bilaterally.

In a March 2011 statement, the Veteran reported gout episodes in his toes, feet, knees, and elbows.

In May 2011, the Veteran underwent a VA examination.  With regard to his left foot, the examiner noted his reports of localized pain twice per month, lasting for three days at a time.  He described the pain as burning, aching, oppressing, and sharp.  He rated his pain as an eight out of ten, stated that it was exacerbated by physical activity or occurred spontaneously, and that it was relieved by rest.  He also experienced stiffness and swelling at rest, but there was no weakness or fatigue.  He also experienced pain, stiffness, and swelling while walking or standing.  For his right foot, the Veteran denied pain, but reported stiffness and swelling.  He denied weakness and fatigue at rest or while standing or walking, but he reported pain, stiffness, and swelling while standing or walking.

Upon examination, his gait was within normal limits, and his walking was steady.  Examination of the right ankle revealed tenderness, but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, or drainage.  There was also no subluxation.  Examination of the left ankle revealed no signs of edema, instability, abnormal movement, effusion, weakness, redness, tenderness, heat, deformity, subluxation, guarding of movement, malalignment, or drainage.  There was also no ankylosis.  For the right ankle, range of motion testing revealed dorsiflexion to 15 degrees with pain at 10 degrees, and plantar flexion to 30 degrees with pain at 25 degrees.  For the left ankle, range of motion testing revealed dorsiflexion to 20 degrees, and plantar flexion to 45 degrees.  The examiner also noted that the Veteran’s bilateral ankle function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use.

Examination of the both feet revealed edema, tenderness, and redness; but there was no evidence of painful motion, disturbed circulation, weakness, atrophy, heat, or instability.  Palpation of the plantar surfaces revealed no tenderness.  The examiner noted the presence of hammer toes on the left foot, including the fourth and fifth toe.  There was a bunion formation on the distal end of the left and right first metatarsal joints, as well as swelling and redness around the left and right first toes most likely due to acute gout.  The Veteran was diagnosed with gout, hallux valgus, and bunions of the bilateral feet.

In September 2011, the submitted photographs showing swelling in his right elbow, bilateral ankles, and bilateral feet.

In November 2011, the Veteran underwent a VA examination of his feet.  The examiner noted his reports of localized pain in the top metatarsals of the feet which occurred constantly that was aching and resulted in cramping.  He rated the pain as a six out of ten.  The pain was exacerbated by physical activity and relieved by rest.  At rest, there was no pain, weakness, stiffness, swelling, or fatigue.  He experienced pain, stiffness, and swelling with walking or standing.  

Upon examination, there were no signs of abnormal weight bearing, breakdown, callosities, or unusual shoe wear pattern.  He did not require an assistive device for ambulation.  Both ankles showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement.  Examination showed no deformity or ankylosis.  For the both ankles, range of motion testing revealed dorsiflexion to 20 degrees, and plantar flexion to 45 degrees, even after repetitive use testing.  Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use.  Examination of both feet did not demonstrate tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation.  There was active motion in the metatarsophalangeal joint of the left toe.  Palpation of the plantar surfaces of the feet revealed no tenderness, the alignment of the Achilles tendon was normal with non-weight bearing.  Although pes planus and pes cavus were not present, the Veteran had hammer toes on the third and fourth toes of his left foot.  Hallux valgus was noted on both feet, and the degree of angulation was severe with no resection of the metatarsal head.  There was no limitation of standing or walking, but he required arch supports and shoe inserts.  X-rays revealed hallux valgus, gouty arthritis, and pes planus.  The Veteran was diagnosed with bilateral hallux valgus, gouty arthritis, pes planus, and lateral deviation of the lesser toes.  The examiner opined that his bilateral hammer toes were likely related to his military service, but that his hallux valgus was less likely than not related to his military service.

In a June 2012 statement, the Veteran stated that the frequency of his gout attacks was more appropriately measured in months, not years, and that he had undergone numerous aspirations if his toes, ankles, and elbows.  He also reported ongoing problems with bilateral hammer toes.

In a June 2012 letter, the Veteran’s treatment provider, Dr. C.Z., noted that he had been suffering from gout for many years, that he suffered gout on a monthly basis in 2010, and that he experienced three to four gout attacks per month beginning in 2011.  Dr. C.Z. also noted that end-stage gouty changes of the first metatarsophalangeal joint was noted on X-ray in October 2011.  Dr. C.Z. also noted that his symptoms had significantly improved since he began a new medication regimen in November 2011. 

In his February 2014 substantive appeal, the Veteran argued that he experienced more than 4 exacerbations of gout per year.  In fact, he stated that he experienced gout at least once per month, despite medication.  He stated that, during his attacks, the particular joint affected was nearly 100 percent unusable for seven to ten days.

In December 2014, the Veteran submitted photographs showing swelling of the right elbow during a gout attack.

In April 2016, the Veteran submitted photographs showing swelling of the left elbow during a gout attack.

In January 2017, the Veteran submitted photographs showing swelling of the right elbow during a gout attack.

In April 2017, the Veteran testified before the undersigned Veterans Law Judge.  His contention was that he experienced episodes of gout three or four times a month, not twice a year.  See April 2017 Hearing Transcript, p. 4.  He stated that he experienced gout in his elbows, wrists, hands, knees, ankles and feet. Id. at 6.  He stated that, when gout occurred in a particular joint, he was unable to use it.  Id.  at 7.  He stated that when his attacks occurred, they would last seven to ten days at a time. Id. at 9.

Later in April 2017, the Veteran submitted a log of his gout attacks from January 2014 through May 2015.  The joints identified included his left hand, right knee, bilateral elbows, bilateral toes, and right foot.  The Veteran also submitted photographs of gout attacks in the left hand, the bilateral feet, and both elbows.

In accordance with the Board’s November 2017 remand, the Veteran underwent a number of VA examinations in January 2018.  With regard to his gout, the examiner noted that the Veteran developed gout of the elbows, wrists, hands, knees, ankles, and feet.  He was noted to used continuous medication, including uloric, indomethacin, and colchincine.  The examiner noted that the Veteran had not lost weight due to his gout, and that he did not have anemia.  The joints involved included the bilateral elbows, bilateral wrists, bilateral hands and fingers, bilateral knees, bilateral ankles, and bilateral feet and toes, and that examiner noted that he experienced limitation of motion in each of these joints.  X-rays revealed bilateral posterior olecranon spurs of the elbows; early degenerative changes of the bilateral distal interphalangeal joints; moderate narrowing of bilateral knee compartments; and a small plantar calcaneal spur consistent with osteoarthritis of the right foot.  The examiner noted that the Veteran experienced four or more exacerbations per year that were not incapacitating, and two incapacitating exacerbations during that last twelve months that lasted a total of two to four weeks.  The examiner also noted that the Veteran’s gout was not manifested by constitutional manifestations associated with active joint involvement which were totally incapacitating.  Once again, the examiner noted that the Veteran’s gout was not manifested by weight loss or anemia productive of severe impairment of health.  His gout was manifested by severely incapacitating exacerbations occurring four or more times a year or lesser number over prolonged periods; however, there were no symptom combinations productive of definite impairment of health objectively supported by examination findings.

With regard to the Veteran’s hands, the examiner noted the presence of gamekeeper’s thumb, degenerative arthritis, sprain, and gout of the bilateral hands.  He was noted to be left hand dominant.  He reported symptoms of pain and swelling during gout attacks.  He also reported problems with writing, lifting, and gripping during gout flare-ups.  For both hands, there was no gap between the pad of the thumb and the fingers, and there was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion of either the index finger or middle finger.  Pain was noted during the examination on flexion and opposition with the thumb, but it did not result in functional loss.  There was also pain with use of the hand.  Following repetitive-use testing, the Veteran’s range of motion stayed the same.  With regard to his reports of flare-ups, the examiner stated that the examination findings were consistent with his reports.  Furthermore, with regard to loss of motion during flare-ups of the right hand, the examiner stated that the Veteran was further limited by pain, and that there was a 7.5 centimeter gap between the pad of the thumb and the fingers, a 4 centimeter gap between the index finger and the proximal transverse crease of the hand, and a 4.5 centimeter gap between the proximal transverse crease of the hand.  With regard to loss of motion during flare-ups of the left hand, the examiner stated that he was further limited by pain, and that there was a 10.5 centimeter gap between the pad of the thumb and the fingers, a 10 centimeter gap between the index finger and the proximal transverse crease of the hand, and a 10 centimeter gap between the proximal transverse crease of the hand.  Additional factors contributing to the Veteran’s disability included less movement than normal, weakened movement, and pain with active and non-weight bearing.  There was no ankylosis of either hand.

With regard to the Veteran’s elbows, the examiner noted the diagnoses of left olecranon bursitis, left medial epicondylitis, bilateral degenerative arthritis, bilateral gout, and bilateral olecranon spurs.  The Veteran reported flare-ups of gout attacks manifested by swelling and pain.  He also reported pain with lifting, and an inability to stretch his elbows.  Range of motion testing of the right elbow revealed flexion to 115 degrees, extension to zero degrees, supination to 75 degrees, and pronation to 80 degrees.  Pain was noted during each range of motion test.  There was also pain with weight bearing and objective evidence of crepitus.  Range of motion testing of the left elbow revealed flexion to 120 degrees, extension to zero degrees, supination to 65 degrees, and pronation to 75 degrees.  Pain was noted during each range of motion test.  There was also pain with weight bearing and objective evidence of crepitus.  Repetitive-use testing of the right elbow revealed flexion to 105 degrees, extension to zero degrees, supination to 75 degrees, and pronation to 75 degrees, while repetitive-use testing of the left elbow was consistent with the initial results.  With regard to flare-ups, the examiner noted that the examination was medically consistent with the Veteran’s description of functional impairment during flare-ups.  Furthermore, the examiner indicated that during flare-ups, the Veteran’s range of motion, bilaterally, would be limited to the following: flexion to less than or equal to five degrees, extension to zero degrees, supination to less than or equal to five degrees, and pronation to less than or equal to five degrees.  There was no ankylosis of either elbow.

With regard to the Veteran’s wrists, the examiner noted the diagnoses of chronic wrist sprains and gout.  He described flare-ups during gout attacks causing swelling and pain with gripping and lifting.  Range of motion testing of the right wrist revealed palmar flexion to 30 degrees, dorsiflexion to 40 degrees, ulnar deviation to 35 degrees, and radial deviation to 10 degrees.  Pain was noted throughout range of motion testing, including during weight bearing.  There was also evidence of crepitus.  Range of motion testing of the left wrist revealed palmar flexion to 40 degrees, dorsiflexion to 40 degrees, ulnar deviation to 40 degrees, and radial deviation to 10 degrees.  Pain was noted throughout range of motion testing, including during weight bearing.  There was also evidence of crepitus.  Repetitive-use testing of the right wrist revealed palmar flexion to 25 degrees, dorsiflexion to 40 degrees, ulnar deviation to 35 degrees, and radial deviation to 10 degrees; while repetitive-use testing of the left wrist revealed palmar flexion to 40 degrees, dorsiflexion to 40 degrees, ulnar deviation to 40 degrees, and radial deviation to five degrees.  Furthermore, the examiner indicated that during flare-ups, the Veteran’s range of motion, bilaterally, would be limited to the following: palmar flexion to less than or equal to five degrees, dorsiflexion to less than or equal to five degrees, ulnar deviation to less than or equal to five degrees, and radial deviation to less than or equal to five degrees.  There was no ankylosis of either wrist.

With regard to the Veteran’s knees, the examiner noted the diagnoses of bilateral knee strain, bilateral knee joint osteoarthritis, bilateral knee instability, left knee patellofemoral pain syndrome, and bilateral knee gout.  The Veteran reported flare-ups of gout attacks manifested by swelling and pain, and he stated he could not bend his knees.  He also reported pain with walking, squatting, standing, bending, and lifting.  Range of motion testing of the right knee revealed flexion to 105 degrees and extension to zero degrees.  Pain was noted during each range of motion test.  There was also pain with weight bearing and objective evidence of crepitus.  Range of motion testing of the left knee revealed flexion to 95 degrees and extension to zero degrees.  Pain was noted during each range of motion test.  There was also pain with weight bearing and objective evidence of crepitus.  Range of motion was the same after repetitive-use testing on the right knee, but flexion in the left knee was further limited to 90 degrees. With regard to flare-ups, the examiner noted that the examination was medically consistent with the Veteran’s description of functional impairment during flare-ups.  Furthermore, the examiner indicated that during flare-ups, the Veteran’s range of motion, bilaterally, would be limited to the following: flexion to less than or equal to five degrees, and extension to zero degrees.  There was no ankylosis of either knee.  Joint stability testing revealed 1+ (0-5 millimeters) in anterior and posterior instability and 2+ (5-10 millimeters) in medial and lateral instability, bilaterally.

With regard to the Veteran’s ankles, the examiner noted the diagnoses of bilateral lateral collateral ligament sprain and gout.  The Veteran reported flare-ups of gout attacks manifested by swelling and pain.  He also reported pain with walking.  Range of motion testing of the right ankle revealed dorsiflexion to 10 degrees and plantar flexion to 35 degrees.  Pain was noted during each range of motion test.  There was also pain with weight bearing and objective evidence of crepitus.  Range of motion testing of the left ankle revealed dorsiflexion to 10 degrees and plantar flexion to 40 degrees.  Pain was noted during each range of motion test.  There was also pain with weight bearing and objective evidence of crepitus.  Range of motion was the same after repetitive-use testing. With regard to flare-ups, the examiner noted that the examination was medically consistent with his description of functional impairment during flare-ups.  Furthermore, the examiner indicated that during flare-ups, the Veteran’s range of motion, bilaterally, would be limited to the following: dorsiflexion to less than or equal to five degrees, and plantar flexion to zero degrees.  There was no ankylosis of either ankle.  There was laxity in both ankles.

Finally, the Veteran underwent an examination of his feet.  The examiner noted the presence of Morton’s neuroma of the left foot, hammer toes bilaterally, hallux valgus bilaterally, a calcaneal spur of the right foot, degenerative arthritis of the right foot, and bilateral gout.  The Veteran reported a burning feeling and pain in his feet, and he described problems walking and difficulty with steadiness and balance.  He had hammer toes on the second through fifth toes, bilaterally.  There were mild to moderate symptoms of hallux valgus.  Overall, the examiner concluded that his bilateral foot problems were severe.  Additional factors of the Veteran’s disability included pain on movement, pain on weight bearing, pain on non-weight bearing, disturbance of locomotion, and interference with standing.  The examiner also noted that the Veteran’s functional impairment was not such that no effective function remained other than that which would equally served by an amputation with prosthesis.

C. Analysis

1. Service-Connected Bilateral Hammer Toes Prior to January 9, 2018

Based on the evidence of record, the Board finds that initial compensable ratings under Diagnostic Code 5282 are not warranted for the Veteran’s service-connected bilateral hammer toes prior to January 9, 2018.

Significantly, the Veteran’s service-connected bilateral hammer toes have never been shown to involve all of toes on either foot.  For example, the January 2011 private treatment record only noted hammer toes on the second through fifth digits.  The May 2011 VA examination only noted hammer toes on the fourth and fifth digits of the left foot, and the November 2011 VA examiner only noted hammer toes on the third and fourth toes of his left foot.  Finally, the January 2018 VA examiner only noted hammer toes on the second through fifth digits, bilaterally.

In assessing the severity of the Veteran’s bilateral hammer toes, the Board has considered his assertions regarding his symptoms, including pain, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In this case, however, the competent medical evidence offered detailed, specialized determinations pertinent to the rating criteria that is more probative in evaluating the pertinent symptoms associated with his bilateral hammer toes. Specifically, as noted above, at no point prior to January 9, 2018, has the evidence demonstrate hammer toes on all toes of either foot.  Moreover, insofar as the Veteran’s reports pain and swelling of the feet, as will be discussed below, such has been attributed to his service-connected gout and will be accounted for in the Veteran’s rating for gout.  As such, his lay assertions do not support the assignment of initial compensable disability ratings for his service-connected bilateral hammer toes at any point prior to January 9, 2018.

The Board also notes that hammer toes is directly contemplated by the Rating Schedule under Diagnostic Code 5282; thus, consideration of whether other diagnostic codes would provide for a higher rating is not appropriate.  See Copeland v. McDonald, 27 Vet. App. 333, 336-38 (2015) (holding that, “as a matter of law, Diagnostic Code 5284 does not apply to the eight [other] foot conditions specifically listed in § 4.71a,” so listed conditions could not be rated by analogy under that Diagnostic Code).

In sum, the Board finds that, prior to January 9, 2018, initial compensable ratings for the Veteran’s service-connected bilateral hammer toes is not warranted under Diagnostic Code 5282.  Because the preponderance of the evidence is against his claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

2. Service-Connected Gout Prior to January 9, 2018

Based on the evidence of record, the Board finds that an initial disability rating of 80 percent, but no higher, under Diagnostic Code 5002 is warranted for the Veteran’s service-connected gout from December 29, 2010, to January 7, 2018.  Specifically, the Board finds that evidence of record demonstrates that his service-connected gout was manifested by chronic residuals, including limitation of motion of the elbows, wrists, hands, knees, ankles, and feet that has been objectively confirmed by findings of swelling and/or satisfactory evidence of painful motion.  

Initially, the Board notes that the Veteran has reported chronic residuals, including limitation of motion, due to his service-connected gout in each of his elbows, wrists, hands, knees, ankles, and feet throughout the appeal period.  See, e.g., March 2011 VA Form 21-4138, Statement in Support of Claim; May 2011 VA Form 21-0820, Report of General Information.  Furthermore, throughout the appeal period, the Veteran’s initial reports have been objectively confirmed by findings of swelling and/or satisfactory evidence of painful motion.  For example, the October 2010 private treatment record confirmed his report of swelling in his right elbow, noting a large palpable effusion.  The May 2011 VA examiner confirmed the presence of tenderness in the right ankle, as well as edema, tenderness, and redness in the Veteran’s feet.  The September 2011 photographs clearly show swelling in the right elbow, both ankles, and both feet, and the photographs from December 2014, March 2016, and January 2017, confirm that he experienced swelling in his left elbow as well as his right.  The findings of the January 2018 VA examination reports lend further support to the Veteran’s initial statements back in March and May 2011.  As noted above, the January 2018 VA examiner specifically noted that he was not being examined during a flare-up/gout attack, but that there was nevertheless evidence of painful motion and/or painful movement on examination of the Veteran’s elbows, wrists, hands, knees, ankles, and feet.

As such, pursuant to Diagnostic Code 5002, the Board has assigned a 10 percent rating to each major joint (the bilateral elbows, bilateral wrists, bilateral knees, and bilateral ankles), as well as a 10 percent disability rating to each minor joint group (the interphalangeal, metacarpal, and carpal joints of the upper extremities (the hands), and the interphalangeal, metatarsal, and tarsal joints of the lower extremities (the feet)).  See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5002.  When each 10 percent disability rating for each major joint and minor joint group is combined under 38 C.F.R. § 4.25, and the bilateral factor is applied pursuant to 38 C.F.R. § 4.26, the Veteran’s combined disability rating under Diagnostic Code 5002 is 80 percent.  Moreover, although many of the chronic residuals initially described by the Veteran in his March and May 2011 statements were objectively confirmed at later times via his private treatment records, photographs, and VA examinations, the Board finds that his initial statements are sufficient to demonstrate the presence of chronic residuals in each major joint and minor joint group throughout the course of the appeal period.  As such, the Board finds that an 80 percent disability rating under Diagnostic 5002 is warranted, effective December 29, 2010, the date his claim for service connection was received.

However, the Board finds that a rating in excess of 80 percent prior to January 9, 2018, is not warranted at any point during the appeal period.

With regard to rating criteria under Diagnostic Code 5002, as noted above, a 100 percent disability rating is warranted for constitutional manifestations associated with active joint involvement that are totally incapacitating.  Although Diagnostic Code 5002 does not define an “incapacitating exacerbation,” the term is defined elsewhere in the Rating Schedule, both within the same chapter regarding evaluating disability of the musculoskeletal system, specifically intervertebral disc syndrome, and in the rating schedule regarding the digestive system.  As used therein, an incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1; 38 C.F.R. § 4.114, Diagnostic Codes 7345 and 7354, Note 2 (2018).

Here, although the Veteran has stated that he experiences multiple attacks of gout on a monthly basis, and his statements have been confirmed by his private treatment provider, see June 2012 Letter from Dr. C.Z. there is nothing in the record that suggests that his gout attacks have been totally incapacitating requiring bed rest prescribed by a physician.  As such, the Board finds that a rating in excess of 80 percent under Diagnostic Code 5002 is not warranted at any point prior to January 9, 2018.

Finally, the Board has considered whether higher ratings may be assigned for residuals such as limitation of motion or ankylosis at any point prior to January 9, 2018, under the appropriate diagnostic codes for the Veteran’s elbows, wrists, hands, knees, ankles, and feet.

Initially, with regard to the Veteran’s bilateral elbows, ratings in excess of 10 percent are not warranted under any pertinent diagnostic code.  The Board notes that higher ratings could be assigned under Diagnostic Code 5205 for ankylosis of the elbows; however, there is no evidence of record demonstrating ankylosis in either of the Veteran’s elbows warranting a rating under Diagnostic Code 5205.  Furthermore, as for Diagnostic Codes 5206 and 5207 concerning limitation of flexion and extension of the elbow, the only evidence of record discussing his range of motion is the October 2010 private treatment record which noted that the Veteran displayed full range of motion in his right elbow.  There is no evidence of record, including lay statements from the Veteran, that addresses his range of motion in his left elbow dated prior to January 9, 2018.  As such, the Board finds that ratings in excess of 10 percent for either of the Veteran’s elbows are not warranted prior to January 9, 2018.

With regard to the Veteran’s bilateral wrists, the currently-assigned separate 10 percent disability ratings are the maximum assignable ratings for limitation of the wrist under Diagnostic Code 5215.  38 C.F.R. § 4.71a.  Thus, a higher rating may not be assigned under this code.  The Board notes that higher ratings could be assigned under Diagnostic Code 5214 for ankylosis; however, there is no evidence of record demonstrating ankylosis in either of his wrists at any point prior to January 9, 2018.  As such, the Board finds that ratings in excess of 10 percent for either of the Veteran’s wrists are not warranted prior to January 9, 2018.

With regard to the Veteran’s bilateral hands, ratings in excess of 10 percent are not warranted under any pertinent diagnostic code.  Initially, the Board notes that higher ratings could be assigned under Diagnostic Codes 5216 through 5227 for ankylosis, favorable or unfavorable, of multiple digits or individual digits; however, there is no evidence of record demonstrating ankylosis in any of his fingers.  Furthermore, as for Diagnostic Codes 5228 and 5229 concerning limitation of motion for the individual fingers, there is no evidence of record that addresses the Veteran’s range of motion in his fingers dated prior to January 9, 2018, to allow for higher ratings under these diagnostic codes.  As such, the Board finds that ratings in excess of 10 percent for either of the Veteran’s hands are not warranted prior to January 9, 2018.

With regard to the Veteran’s bilateral knees, ratings in excess of 10 percent are not warranted under any pertinent diagnostic code.  Initially, the Board notes that higher ratings could be assigned under Diagnostic Codes 5256 for ankylosis, favorable or unfavorable, of the knee; however, there is no evidence of record demonstrating ankylosis in either of the Veteran’s knees.  Furthermore, as for Diagnostic Codes 5260 and 5261 concerning limitation of motion for the knee, there is no evidence of record that addresses the Veteran’s range of motion in his knees dated prior to January 9, 2018, to allow for higher ratings under these diagnostic codes.  As such, the Board finds that ratings in excess of 10 percent for either of the Veteran’s knees are not warranted prior to January 9, 2018.

With regard to the Veteran’s bilateral ankles, ratings in excess of 10 percent are not warranted under any pertinent diagnostic code.  Initially, the Board notes that higher ratings could be assigned under Diagnostic Codes 5270 for ankylosis of the ankle; however, there is no evidence of record demonstrating ankylosis in either ankle.  Furthermore, as for Diagnostic Code 5271 concerning limitation of motion for the ankle, the Board finds that the evidence of record fails to demonstrate marked limitation of motion of either ankle.  As noted above, the May 2011 VA examination noted dorsiflexion to 15 degrees and plantar flexion to 30 degrees in the right ankle.  These findings represent 75 percent and 66 percent, respectively, of what would be considered normal range of motion.  See 38 C.F.R. § 4.71, Plate II.  Moreover, his range of motion in his left ankle was normal.  Although the May 2011 VA examiner noted objective evidence of pain in at 10 degrees dorsiflexion and 25 degrees plantar flexion, the Veteran’s painful motion is contemplated in his 10 percent disability rating assigned under Diagnostic Code 5002.  Moreover, dorsiflexion to 10 degrees and plantar flexion 25 degrees still represents 50 percent dorsiflexion and 56 percent plantar flexion, and the Board finds that such is inconsistent with “marked” limitation of motion as contemplated under Diagnostic Code 5271.  Finally, the Board notes that he displayed full range of motion in both ankles during the November 2011 VA examination.  As such, the Board finds that ratings in excess of 10 percent for either of the Veteran’s ankles are not warranted prior to January 9, 2018.

Finally, with regard to the Veteran’s bilateral feet, ratings in excess of 10 percent are not warranted under any pertinent diagnostic code.  Although there is no specific diagnostic code that rates limitation of motion of the toe or foot, VA’s General Counsel has determined that Diagnostic Code 5284 contemplates such miscellaneous injuries as “trauma to the foot involving the forefoot and toes, the talus and midfoot, and the os calcis and heel cord,” as well as “[f]ractures and dislocations [that] may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints.” VAOPGCPREC 9-98 (Aug. 14, 1998).  Nevertheless, both the May 2011 and November 2011 VA examiners specifically noted that there was no evidence of painful motion in either of the Veteran’s feet.  As such, the Board finds that ratings in excess of 10 percent for either of the Veteran’s feet are not warranted prior to January 9, 2018.

In assessing the severity of the Veteran’s gout, the Board has considered his assertions regarding his symptoms, including pain and the frequency of attacks, which he is certainly competent to provide. See Layno, supra.  In this case, however, the competent medical evidence of record, including the Veteran’s private treatment records and the VA examinations reports, offered detailed, specialized determinations pertinent to the rating criteria that is more probative in evaluating the pertinent symptoms associated with his service-connected gout under Diagnostic Code 5002, as well as any chronic residuals, such as limitation of motion or ankylosis, under the appropriate diagnostic codes for each major joint and minor joint groups.

In sum, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that his service-connected gout warrants an 80 percent disability rating under Diagnostic Code 5002 from December 29, 2010, to January 7, 2018; however, the preponderance of the evidence fails to support a rating in excess of 80 percent under any applicable diagnostic code.  Because the preponderance of the evidence is against a higher rating, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

3. Service-Connected Gout of the Bilateral Elbows From January 9, 2018

Based on the evidence of record, the Board finds that the Veteran is not entitled to ratings in excess of the currently-assigned 10 percent ratings under Diagnostic Codes 5206 and 5213 for his service-connected gout of the left elbow, or rating in excess of the currently-assigned 10 percent ratings under Diagnostic Codes 5207 and 5213 for the Veteran’s service-connected gout of the right, at any point from January 9, 2018 to the present.

Initially, the Board notes that higher ratings could be assigned under Diagnostic Code 5205 for ankylosis of the elbows; however, there is no evidence of record demonstrating ankylosis in either of the Veteran’s elbows warranting a rating under Diagnostic Code 5205.  To the contrary, the January 2018 VA examiner explicitly noted that the Veteran was not suffering from ankylosis in either elbow.  

Furthermore, as for Diagnostic Codes 5206, 5207, and 5213, concerning limitation of flexion, extension, and supination/pronation, the Board notes that the Veteran’s range of motion during the January 2018 VA examination did not meet the criteria for compensable ratings under those diagnostic codes, let alone the criteria warranted for higher ratings.  Rather, as noted by the February 2019 rating decision, the separately-assigned 10 percent disability ratings under Diagnostic Codes 5206 and 5213 for his service-connected gout of the left elbow were based on evidence of painful motion in both flexion and supination/pronation.  Similarly, the separately-assigned 10 percent disability ratings under Diagnostic Codes 5207 and 5213 for his service-connected gout of the right elbow were based on evidence of painful motion in both extension and supination/pronation.  Although the January 2018 VA examiner noted that the Veteran experienced painful motion on extension of the left elbow and flexion of the right elbow, the Board finds that assigning separate compensable ratings under Diagnostic Code 5207 for the left elbow and Diagnostic Code 5206 for the right elbow would constitute pyramiding, and it would be compensating the Veteran twice for the same symptom, painful motion in both elbows.  See 38 C.F.R. § 4.14.

The Board also notes that the January 2018 examiner estimated that, during gout flare-ups, the Veteran’s flexion, supination, and pronation would likely be less than or equal to five degrees, which would seemingly entitle him to the maximum ratings under Diagnostic Codes 5206 and 5213.  However, Diagnostic Code 5002 makes an explicit distinction between the active process of gout and any chronic residuals.  It states that ratings for the active process are not to be combined with any chronic residual ratings for limitation of motion.  See 38 C.F.R. § 4.71a.  Because the January 2018 examiner specifically noted that the range of motion estimates were specifically related to the Veteran’s gout flare-ups, under Diagnostic Code 5002, any consideration of limited motion during the active process of his service-connected gout is not warranted.  If the Veteran’s gout were to be rated based on its active process, his rating under Diagnostic Code 5002 would be less than what it currently is by rating his residuals.  Specifically, the January 2018 VA examination findings would entitle him to a 60 percent disability rating under Diagnostic Code 5002 due to severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods.  By rating the Veteran’s chronic residuals, his combined rating is 100 percent.

In sum, the Board finds that the preponderance of the evidence fails to support ratings in excess of the currently-assigned 10 percent ratings under Diagnostic Codes 5206 and 5213 for his service-connected gout of the left elbow, and the currently-assigned 10 percent ratings under Diagnostic Codes 5207 and 5213 for the Veteran’s service-connected gout of the right elbow under any applicable diagnostic code.  Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

4. Service-Connected Gout of the Bilateral Wrists From January 9, 2018

Based on the evidence of record, the Board finds that the Veteran is not entitled to ratings in excess of the currently-assigned 10 percent ratings for his service-connected gout of the bilateral wrists at any point from January 9, 2018, to the present.

Initially, the Board notes that higher ratings could be assigned under Diagnostic Code 5214 for ankylosis of the wrists; however, there is no evidence of record demonstrating ankylosis in either of the Veteran’s wrists warranting a rating under Diagnostic Code 5214.  To the contrary, the January 2018 VA examiner explicitly noted that the Veteran was not suffering from ankylosis in either wrist.

Moreover, the Board notes that the Veteran is in receipt of the maximum assignable rating for limitation of motion for both wrists under Diagnostic Code 5215.  Thus, a higher rating may not be assigned under this code.  The Board also notes that the Veteran’s range of motion has never met the criteria for a compensable rating under Diagnostic Code 5215; rather, as noted by the February 2019 rating decision, the AOJ assigned the 10 percent disability ratings under Diagnostic Code 5215 due to evidence of painful motion.  

In sum, the Board finds that the preponderance of the evidence fails to support ratings in excess of the currently-assigned 10 percent ratings under Diagnostic Codes 5215 for the Veteran’s service-connected gout of the bilateral wrists.  Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

5. Service-Connected Gout of the Bilateral Hands From January 9, 2018

Based on the evidence of record, the Board finds that the Veteran is not entitled to ratings in excess of the currently-assigned 10 percent ratings for his service-connected gout of the bilateral thumbs at any point from January 9, 2018, to the present.  Furthermore, the Board finds that he is not entitled to ratings in excess of the currently-assigned noncompensable ratings for his service-connected gout of the bilateral index fingers and middle fingers at any point from January 9, 2018, to the present.

Initially, the Board notes that higher ratings could be assigned under the diagnostic codes that address ankylosis of individual digits and multiple digits of the hand.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5227 (2018).  However, there is no evidence of record demonstrating ankylosis in any of the Veteran’s fingers warranting a rating under those diagnostic codes.  To the contrary, the January 2018 VA examiner explicitly noted that the Veteran was not suffering from ankylosis in any of his fingers.

Furthermore, as for Diagnostic Codes 5228, 5229, and 5230, concerning limitation of motion in the fingers, the Board notes that the Veteran’s range of motion during the January 2018 VA examination does not meet the criteria for a compensable ratings under those diagnostic codes.  To the contrary, the examiner explicitly noted that there was no gap between the pad of the thumb and the fingers, and that there was no gap between the finger and the proximal transverse crease of the hand on maximal finger flexion in either the index finger or the middle (long) finger.  As noted by the February 2019 rating decision, the separately-assigned 10 percent disability ratings under Diagnostic Codes 5228 for his service-connected gout of the bilateral thumbs were based on evidence of painful motion.    

The Board also notes that the January 2018 examiner estimated that, during gout flare-ups, the Veteran’s range of motion in the thumbs, index fingers, and middles fingers would warrant him to the maximum ratings under Diagnostic Codes 5228 and 5229.  However, as noted above, Diagnostic Code 5002 makes an explicit distinction between the active process of gout and any chronic residuals.  It states that ratings for the active process are not to be combined with any chronic residual ratings for limitation of motion.  See 38 C.F.R. § 4.71a.  Because the January 2018 examiner specifically noted that the range of motion estimates were specifically related to the Veteran’s gout flare-ups, under Diagnostic Code 5002, any consideration of limited motion during the active process of his service-connected gout in not warranted.  If the Veteran’s gout were to be rated based on its active process, his rating under Diagnostic Code 5002 would be less than what it currently is by rating his residuals.  Specifically, the January 2018 VA examination findings would entitle him to a 60 percent disability rating under Diagnostic Code 5002 due to severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods.  By rating the Veteran’s chronic residuals, his combined rating is 100 percent.

Finally, as for the noncompensable ratings for the Veteran’s index fingers and middle fingers, although the examiner noted painful motion on examination, Diagnostic 5002 specifically states that only a single 10 percent rating is assignable for a group of minor joints, including the interphalangeal, metacarpal, and carpal joints of the upper extremities.  Thus, although painful motion was demonstrated in the Veteran’s thumbs, index fingers, and middle fingers, only one 10 percent disability rating is assignable for each of his hands.  Because a 10 percent rating is currently assigned to the Veteran’s bilateral thumbs, any further 10 percent disability ratings would not be allowed under Diagnostic Code 5002 unless his range of motion in his index and middle fingers met the criteria for a compensable rating under Diagnostic Code 5229.  Because the January 2018 VA examiner specifically noted that there was no gap between the finger and the proximal transverse crease of the hand on maximal finger flexion in either the index finger or the middle (long) finger, the Board finds that separate compensable ratings for the Veteran’s service-connected gout of the bilateral index fingers and middle fingers is not warranted from January 9, 2018.

In sum, the Board finds that the preponderance of the evidence fails to support ratings in excess of the currently-assigned 10 percent ratings under Diagnostic Code 5228 for his service-connected gout of the bilateral thumbs, as well as compensable ratings for his service-connected gout of the bilateral index fingers and middle fingers under Diagnostic Code 5229.  Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

6. Service-Connected Gout of the Bilateral Knees From January 9, 2018

Based on the evidence of record, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that he is entitled to 20 percent disability ratings for his service-connected gout of the bilateral knees based on moderate instability, effective January 8, 2018.  However, the Board finds that the Veteran is not entitled to ratings in excess of the currently-assigned 10 percent ratings under Diagnostic Code 5260 for his service-connected gout of the bilateral knees, or compensable ratings under Diagnostic Code 5261, at any point from January 9, 2018 to the present.

Initially, the Board notes that higher ratings could be assigned under Diagnostic Code 5256 for ankylosis of the knees; however, there is no evidence of record demonstrating ankylosis in either of the Veteran’s knees to warrant a rating under that code.  To the contrary, the January 2018 VA examiner explicitly noted that the Veteran was not suffering from ankylosis in either knee.  

Furthermore, as for Diagnostic Codes 5260 and 5261, concerning limitation of flexion and extension, the Board notes that the Veteran’s range of motion during the January 2018 VA examination did not meet the criteria for compensable ratings under those diagnostic codes, let alone the criteria warranted for higher ratings.  Rather, as noted by the February 2019 rating decision, the separately-assigned 10 percent disability ratings under Diagnostic Code 5260 for his service-connected gout of the bilateral knees were based on evidence of painful motion.  Although the January 2018 VA examiner noted that the Veteran also experienced painful motion on extension, the Board finds that assigning separate compensable ratings under Diagnostic Code 5261 would constitute pyramiding, and it would be compensating the Veteran twice for the same symptom, painful motion in the knees.  See 38 C.F.R. § 4.14.

The Board also notes that the January 2018 examiner estimated that, during gout flare-ups, the Veteran’s flexion would likely be less than or equal to five degrees, which would seemingly entitle him to the maximum ratings under Diagnostic Code 5260.  However, as noted above, Diagnostic Code 5002 makes an explicit distinction between the active process of gout and any chronic residuals.  It states that ratings for the active process are not to be combined with any chronic residual ratings for limitation of motion.  See 38 C.F.R. § 4.71a.  Because the January 2018 examiner specifically noted that the range of motion estimates were specifically related to the Veteran’s gout flare-ups, under Diagnostic Code 5002, any consideration of limited motion during the active process of his gout in not warranted.  If the Veteran’s service-connected gout were to be rated based on its active process, his rating under Diagnostic Code 5002 would be less than what it currently is by rating his residuals.  Specifically, the January 2018 VA examination findings would entitle him to a 60 percent disability rating under Diagnostic Code 5002 due to severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods.  By rating the Veteran’s chronic residuals, his combined rating is 100 percent.

With regard to Diagnostic Code 5257, the Board finds that the Veteran is entitled to 20 percent disability ratings for both knees.  As noted above, the January 2018 VA examiner noted that joint stability testing revealed 2+ medial instability and 2+ lateral instability in both knees.  This, coupled with the Veteran’s competent reports of buckling and instability, supports a finding in this case that the Veteran has instability of moderate severity.  As such, these findings are consistent with a 20 percent rating, but no higher, under Diagnostic Code 5257.  

In sum, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that his service-connected gout of the bilateral knees warrant 20 percent disability ratings, but no higher, under Diagnostic Code 5257 for moderate instability.  However, the Board finds that the preponderance of the evidence fails to support ratings in excess of the currently-assigned 10 percent ratings under Diagnostic Code 5260, and the currently-assigned noncompensable ratings under Diagnostic Code 5261.  Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

7. Service-Connected Gout of the Bilateral Ankles From January 9, 2018

Based on the evidence of record, the Board finds that the Veteran is not entitled to ratings in excess of the currently-assigned 10 percent ratings under Diagnostic Code 5271 for his service-connected gout of the bilateral ankles at any point from January 9, 2018 to the present.

Initially, the Board notes that higher ratings could be assigned under Diagnostic Code 5270 for ankylosis of the ankles; however, there is no evidence of record demonstrating ankylosis in either of the Veteran’s ankles to warrant a rating under that code.  To the contrary, the January 2018 VA examiner explicitly noted that the Veteran was not suffering from ankylosis in either ankle.  

Furthermore, as for Diagnostic Code 5271 concerning limitation of motion, the Board notes that the Veteran’s range of motion during the January 2018 VA examination was dorsiflexion to 10 degrees and plantar flexion to 35 degrees in the right ankle, and dorsiflexion to 10 degrees and plantar flexion to 40 degrees in the left ankle.  These findings represent 50 percent or more of what would be considered normal range of motion, see 38 C.F.R. § 4.71, Plate II, and the Board finds that such is inconsistent with “marked” limitation of motion as contemplated under Diagnostic Code 5271.  As such, the Board finds that ratings in excess of 10 percent for either of the Veteran’s ankles are not warranted from January 9, 2018.  

The Board also notes that the January 2018 examiner estimated that, during gout flare-ups, the Veteran’s dorsiflexion and plantar flexion would each be less than or equal to five degrees, which would seemingly demonstrate “marked” limitation under Diagnostic Code 5271.  However, as noted above, Diagnostic Code 5002 makes an explicit distinction between the active process of gout and any chronic residuals.  It states that ratings for the active process are not to be combined with any chronic residual ratings for limitation of motion.  See 38 C.F.R. § 4.71a.  Because the January 2018 examiner specifically noted that the range of motion estimates were specifically related to the Veteran’s gout flare-ups, under Diagnostic Code 5002, any consideration of limited motion during the active process of his service-connected gout in not warranted.  If his gout were to be rated based on its active process, his rating under Diagnostic Code 5002 would be less than what it currently is by rating his residuals.  Specifically, the January 2018 VA examination findings would entitle him to a 60 percent disability rating under Diagnostic Code 5002 due to severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods.  By rating the Veteran’s chronic residuals, his combined rating is 100 percent.

In sum, the Board finds that the preponderance of the evidence fails to support ratings in excess of the currently-assigned 10 percent ratings under Diagnostic Code 5271 for the Veteran’s service-connected gout of the bilateral ankles.  Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

8. Service-Connected Gout of the Bilateral Feet From January 9, 2018

Based on the evidence of record, the Board finds that the Veteran is not entitled to ratings in excess of the currently-assigned 30 percent ratings under Diagnostic Code 5284 for his service-connected gout of the bilateral feet with hammer toes at any point from January 9, 2018 to the present.

Initially, the Board notes that the Veteran’s currently-assigned 30 percent ratings for his service-connected gout of the bilateral feet with hammer toes represents the maximum schedular ratings available under Diagnostic Code 5284.  However, a footnote following Diagnostic Code 5284 indicates that with actual loss of use of the foot, a 40 percent rating is assignable under Diagnostic.  Id.  

Under Diagnostic Code 5167, a maximum 40 percent evaluation is the rating assigned when there is loss of use of a foot.  A footnote to Diagnostic Code 5167 indicates that a rating under this code also warrants entitlement to special monthly compensation.

The term “loss of use” of a foot is defined under 38 C.F.R. § 3.350(a)(2) as where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. See also 38 C.F.R. § 4.63.

Examples under 38 C.F.R. § 3.350(a)(2) that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of three and a half inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63.

In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court held that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also held that, in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision.

38 C.F.R. § 3.350(a)(2) and 38 C.F.R. § 4.63 only provide examples and not an exclusive list of manifestations of loss of use of a foot. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21 (application of rating schedule); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the specified factors for each incremental rating were examples rather than requirements for a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme).

Based on the evidence of record, the Board finds that the Veteran’s service-connected gout of the bilateral feet with hammer toes was not manifested by loss of use of either foot at any time from January 9, 2018.  As noted above, while the Veteran reported during the January 2018 VA examination that he experienced problems with walking and steadiness with his feet, the VA examiner specifically noted that the Veteran did not require the use of any assistive device as a normal mode of locomotion, and that the Veteran’s functional impairment was not such that no effective function remained other than that which would equally served by an amputation with prosthesis.  As such, the Board finds that a 40 percent rating under Diagnostic Code 5167 is not warranted from January 9, 2018.

As for the Veteran’s bilateral hammer toes and whether a separate 10 percent rating is warranted under Diagnostic Code 5282, as noted above Diagnostic Code 5282 allows for a 10 percent rating only when all toes are involved, and the January 2018 VA examiner only noted hammer toes on the second through fifth digits.  Thus, a separate compensable rating under Diagnostic Code 5282 that could is not warranted from January 9, 2018.

In sum, the Board finds that the preponderance of the evidence fails to support ratings in excess of the currently-assigned 30 percent ratings under Diagnostic Code 5284 for the Veteran’s service-connected gout of the bilateral feet with hammer toes.  Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.

REASONS FOR REMAND

With regard to the Veteran’s remaining claim on appeal, entitlement to an initial compensable rating for service-connected bilateral hearing loss, the Board notes that there appear to be outstanding VA treatment records that may be pertinent to the appeal.  Specifically, following the Veteran’s January 2018 VA audiological examination, was seen for a comprehensive audiologic evaluation that included audiological testing of his puretone thresholds in May 2018.  Although the May 2018 treatment record provides a summary of the findings, the specific results are not included.

Because the VA treatment records currently associated with the record appear to be incomplete, and because any outstanding records, including the May 2018 VA audiological results, could bear on the outcome of his claim on appeal if procured, efforts must be made to obtain them, as well as any updated VA treatment records. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records.

The matters are REMANDED for the following action:

1. Associate any outstanding VA treatment records with the claims file, including the full test results of the May 2018 audiologic evaluation, as well as all records dated from July 18, 2018, to the present.

2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file specifically relating to his hearing loss disability.  The agency of original jurisdiction should then attempt to obtain those records if he provides the appropriate authorization.









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3. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

 

V. Chiappetta

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	James R. Springer, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.