Citation Nr: 20034055 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 15-22 116 DATE: May 15, 2020 ORDER Entitlement to a rating in excess of 60 percent for the period from April 28, 2015, for gout of the bilateral feet/toes, is dismissed. Entitlement to service connection for allergic rhinitis is granted. Entitlement to an initial 60 percent rating for the period from June 29, 2012 to April 28, 2015, for gout of the bilateral feet/toes, is granted. REMANDED Entitlement to service connection for a chronic sleep disorder, to include insomnia is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. During the September 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew the issue of entitlement to a rating in excess of 60 percent for gout of the bilateral feet/toes for the period from April 28, 2015, with a full understanding of the consequences of such action. 2. The evidence of record reflects complaints and diagnosis of allergic rhinitis during an active duty period of service in March 2004. 3. For the period from June 29, 2012 to April 28, 2015, the Veteran’s gout of the bilateral feet was manifested by symptomatology most nearly approximating severely incapacitating exacerbations occurring four or more times per year or lesser number over prolonged periods but not by totally incapacitating constitutional manifestations associated with active joint involvement. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to a rating for rating in excess of 60 percent for gout of the bilateral feet/toes for the period from April 28, 2015 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 2. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107: 38 C.F.R. §§ 3.102 , 3.303. 3. The criteria for a 60 percent disability rating, but no higher, from June 29, 2012 to April 28, 2015, for the bilateral feet have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes (DC) 5017, 5002. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to July 1992 with substantial periods of Reserve service thereafter. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision. In September 2018, a hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. At the time of Board hearing, the Veteran was represented by the California Department of Veterans Affairs (CADVA). While pending Board adjudication the RO issued a March 2015 rating decision granting a 60 percent rating for gout of the bilateral feet/toes effective April 28, 2015. As discussed below, the Veteran withdrew the claim for entitlement to a rating in excess of 60 percent from April 28, 2015. However, he maintained a claim for entitlement to an initial compensable rating for bilateral gout prior to April 28, 2015. This change is reflected above. Finally, following Board hearing, the Board received conflicting information as to whether the Veteran was represented by an attorney or CADVA. In January 2020 correspondence, the Board sought clarification of from the Veteran regarding this representation question. The letter advised the Veteran that if there was no response, the Board would assume he is continuing without representation. He has not responded to the Board’s letter, and has not since appointed a new representative. Withdrawal 1. Entitlement to a rating in excess of 60 percent for the period from April 28, 2015, for gout of the bilateral feet/toes. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. On 2018 Board hearing the Veteran withdrew his claim for entitlement to a rating in excess of 60 percent for gout of the bilateral feet/toes for the period from April 28, 2015 forward. In so doing, the Veteran when questioned by the VLJ expressed satisfaction with his current rating for that period. He, and his representative, confirmed a discussion of his satisfaction with that rating prior to Board hearing. Additionally, when questioned by the VLJ he specified that the only claim remaining on appeal was for entitlement to an initial compensable rating prior to April 28, 2015 for gout of the bilateral feet/toes. These statements represent an explicit and unambiguous withdrawal, that was done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of that matter and it is dismissed. 2. Entitlement to service connection allergic rhinitis. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran seeks service connection for allergic rhinitis and contends that his condition had its onset during a period of active duty. VA medical records confirms current diagnosis of allergic rhinitis throughout the period on appeal. Additionally, private treatment medical records document initial allergy testing and allergic rhinitis diagnosis in March 2004. These diagnoses were confirmed in December 2004 and continued from that date until the present. As to the second element of Shedden, in service incurrence, military retirement records confirms the Veteran received AD (active duty) points from January 12, 2002 to August 14, 2004 and then from August 19, 2004 to October 10, 2006. Such records indicate that at the time of initial allergy testing and allergic rhinitis diagnosis the Veteran had active duty service. Moreover, the remainder of the record, to include the Veteran’s credibly reports and treatment medical records, document that his allergic rhinitis has continued until the present, which satisfies the third element of Shedden. Service connection is warranted. The Board acknowledges that the record contains a negative July 2013 VA examination opinion. However, this opinion has no probative value as its rationale was conclusory and does not address the above treatment medical records. In sum, the Veteran’s allergic rhinitis was incurred in service and the record does not contain competent evidence to the contrary therefore entitlement to service connection is granted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Under the applicable diagnostic criteria, gout is to be rated under DC 5002, which compensates for rheumatoid arthritis (atrophic). When gout is considered an active process, a 20 percent rating is assigned for one or two exacerbations a year. A 40 percent rating is assigned for symptoms combinations productive of definite impairment of health objectively supported by examination findings of incapacitating exacerbations occurring 3 or more times a year. A 60 percent rating is assigned when the evidence fails to support a 100 percent rating, but does show weight loss and anemia productive of severe impairment of health or severely incapacitating episodes occurring 4 or more times a year or lesser number over prolonged periods. Finally, a 100 percent rating is granted for constitutional manifestations associated with active joint involvement, resulting in total incapacitation. 38 C.F.R. § 4.71a, DC 5002. When gout is inactive, but results in chronic residuals, for residuals such as limitation of motion or ankylosis, favorable or unfavorable, rate under the appropriate diagnostic codes for the specific joints involved. 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 DC 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. 3. Entitlement to an initial compensable rating for gout of the bilateral feet/toes prior to April 28, 2015. As this claim stems from the initial grant of service connection the relevant period on appeal is from the date of service connection, June 29, 2012, forward. However, as discussed, the Veteran indicated satisfaction with his 60 percent rating, therefore the Board will only consider the period from June 29, 2012 until April 28, 2015, the effective date of his 60 percent award. The Veteran’s gout is rated under DC 5017, which compensates specifically for that disability. The Board finds that a 60 percent rating has been warranted for the entirety of the relevant period on appeal. The current award of a 60 percent rating was predicated on the findings of an April 28, 2015 VA examination report. Within this report the examiner opined that the Veteran experienced incapacitating exacerbations four or more times a year. Per the examiner, during an incapacitating exacerbation the Veteran’s bilateral gout manifested in symptomatology of severe painful swelling, redness of the great toes and adjacent toes resulting in the need for bedrest for five days. The exacerbations lasted for a week but less than two weeks. Importantly, the examiner specified that such exacerbations had been present for the 12-month period prior to examination. As for the period from June 25, 2012 until April 28, 2014, the record includes a March 16, 2012 report documenting a gout attack of the bilateral feet which had been present for over a week. Examination revealed pain, warmth, redness, and tenderness, as well as a bilateral edema. Follow up on March 26, 2012 noted improved gout with swelling but pain down to 1/10. April 2012 records note on-going but improved gout with some pain and swelling. December 2012 records document gout with painful ankles and feet. January 29, 2013 records reflect the Veteran sought treatment for gout that had again been present for over a week. Physical examination revealed a left foot that was tender, swollen, and painful. Thereafter, February 22, 2013 records noted on-going treatment for gout associated pain. May 2013 records note severe gout pain with associated joint swelling. June 2013 records reflect gout bilateral foot pain which had decreased to mild. Emergency room and urgent care records note specific visits for gout in December 2013 and February 2014. On each occasion, the Veteran was noted to suffer from joint pain, swelling, and redness. Records also specifically indicate the Veteran reported symptomatology had been present in one foot for a week, essentially abated, and then manifested in the opposite foot. The severity of the Veteran’s gout in December 2013 is evident in his report that the pain radiated from his feet up through his leg. February 2014 records similarly indicate gout pain was 10/10 in severity. Treatment records reflect continuous reliance on gout medication throughout the appeal, notwithstanding the prescription of additional medications to treat flares. Finally, the record contains evidence of gout manifesting in the Veteran’s knees and radiating pain in his lower extremities requiring hospitalization in September 2013. The above records document numerous gout attacks during the period between June 25, 2012 and April 28, 2015. These combined flares resulted in symptomatology of severe pain, redness, and swelling. In addition, they, per treatment records, lasted over a week prior to the Veteran seeking treatment and for a significant period thereafter. These combined symptoms mirror those which the 2015 VA examiner considered indicative of severe incapacitating exacerbations. Moreover, for distinct sections of the appeal, the Veteran’s condition was severe enough to warrant emergency treatment. In awarding this rating, the Board acknowledges that a June 2013 VA examiner opined that the Veteran’s symptomatology was equivalent to that of a noncompensable rating. However, this opinion is given less probative weight because it is contradictory to the remaining evidence of record and does not contemplate its findings in relation to the symptomatology reported by the Veteran and clearly discussed in the treatment medical records. The examiner illogically indicated that the Veteran’s gout resulted in no functional impairment while also indicating that he suffered flares 6 times a year that resulted in limitation of range of motion, pain, swelling, and redness. That said, a 60 percent rating is warranted for entirety of the period on appeal. A rating in excess of 60 percent is not warranted. The evidence of record does not establish constitutional manifestations associated with active joint involvement, or totally incapacitating episodes. Moreover, as discussed above, the Veteran has stated that the award of a 60 percent rating satisfies his appeal. REASONS FOR REMAND 4. Entitlement to service connection for a sleep disorder to include insomnia. The Veteran is seeking service connection for a sleep disorder. He asserts the condition was either incurred in service or caused/aggravated by his service-connected disabilities of gout and major depressive disorder (MDD). A remand for a clarifying opinion is required. Although treatment medical records reflect private diagnoses for insomnia the record remains unclear whether this condition is separate and distinct from his MDD. Importantly, VA examinations indicate that the Veteran’s MDD has associated symptomatology of chronic sleep impairment, but do not address his distinct diagnosis of insomnia. As the record is unclear a clarifying opinion is required. If a separate and distinct disability is confirmed, a VA examination opinion should also be obtained to address whether this disability was caused or aggravated by his service-connected gout and/or MDD with associated sleep impairment. The examiner should specifically address the significance of VA treatment records which suggest the Veteran’s gout pain does indeed impede the Veteran’s ability to stay asleep. In so doing, the examiner must address the May 2015 treatise evidence submitted by the Veteran to support his contentions. The examiner should also address whether the Veteran’s chronic sleep impairment associated with his psychiatric disability could have masked his separately diagnosed insomnia. 5. Entitlement to service connection for vertigo. The Veteran seeks service connection for vertigo. Current treatment records confirm a diagnosis of vertigo associated with lightheadedness since at least 2010. Moreover, treatment records document reported lightheadedness following rising from bed at least as early as 2007. A VA examination opinion is warranted to ascertain the nature and etiology of his condition. VA treatment records suggest that the Veteran’s vertigo might be aggravated by his MDD or his insomnia. Specifically, records suggested an increased sensation of lightheadedness and dizziness following lack of sleep to the point the Veteran needed to put his head down. Treatment records repeatedly also indicated he experienced positional vertigo following shifting in bed. Per treatment records, the Veteran reports an inability to lay still at night because of the pain associated with his service-connected disabilities to include toe pain. The Veteran has submitted what appears to be treatise evidence to support this proposition in May 2015. Finally, the Veteran reported worsening of his dizziness symptomatology when experiencing increased allergy symptomatology. As service connection for allergic rhinitis has now been granted this too must be addressed. On remand, a VA examiner must address the relevance of this information in relation to the etiology of the Veteran’s vertigo. 6. Entitlement to service connection for a lumbar spine disability. The Veteran seeks service connection for a low back disability. A June 2013 VA examination report provided a negative opinion. In so doing, the examiner stated there was “insufficient symptomatology/objective findings to support permanent injury or to attribute [the] current condition stemming from the single muscle strain event that occurred in 6 Mar 2002 which was a single acute event that apparently resolved.” This opinion is inadequate. First, the examiner failed to specify what would constitute sufficient symptomatology/objective findings to support the claim. Second, the examiner did not address the Veteran’s reports of on-going symptomatology following injury. Third, the examiner did not address relevant treatment medical records which suggest a correlation between the Veteran’s current disability and service - a private physician indicated in a 2012 report that the Veteran’s use of a 30-pound military vest “exacerbate[d]” his chronic spine pain. That said, although the 2012 statement is relevant it is insufficient for the grant of service connection because it does not indicate whether the Veteran’s back pain resulted in impairment of earning capacity. Nevertheless, an addendum opinion must be obtained addressing this statement. The matters are REMANDED for the following action: 1. Obtain VA examination opinion regarding the Veteran’s insomnia disorder diagnosis. If the examiner determines that an examination is necessary, the AOJ should schedule one for the Veteran. (a.) The examiner is asked to clarify whether the Veteran’s insomnia disorder is a separate and distinct disability from his service-connected psychiatric disability. (b.) If a separate and distinct insomnia disability is confirmed, the examiner must opinion whether this diagnosis was at least as likely as not incurred in or caused by service, or incrementally increased by any of the Veteran’s service-connected disabilities to include MDD and pain associated with gout. (c.) The examiner must address: (*)The significance of VA treatment records which suggest the Veteran’s gout pain does indeed impede the Veteran’s ability to stay asleep. In so doing, the examiner must address the May 2015 treatise evidence and arguments submitted by the Veteran to support his contentions as well as Board testimony. (*) The examiner should also address whether the Veteran’s chronic sleep impairment associated with his psychiatric disability could have masked his separately diagnosed insomnia. 2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any vertigo that may be present. (a.) Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present vertigo was incurred in or is etiologically related to the Veteran’s active service. (b.) The examiner must opinion whether this diagnosis was at least as likely as not incrementally increased by any of the Veteran’s service-connected disabilities to include MDD, gout pain, and allergic rhinitis. (c.) The examiner must address: (*) Current treatment records which confirm a diagnosis of vertigo associated with lightheadedness since at least 2010. Note, treatment records document reported lightheadedness following rising from bed at least as early as 2007. (*) The examiner must address VA treatment records that suggest that the Veteran’s vertigo might be aggravated by his MDD or his insomnia. Specifically, March 2012 records suggested an increased sensation of lightheadedness and dizziness following lack of sleep to the point the Veteran needed to put his head down. (*) February 2015 treatment records repeatedly indicating the Veteran experienced positional vertigo following shifting in bed. Note, the Veteran reports an inability to lay still at night because of the pain associated with his service-connected disabilities, specifically his toe pain. (*) The examiner must address the May 2015 treatise evidence submitted to support this proposition of pain worsening sleep impairment. (*) February 2015 treatment records document the Veteran’s reported worsening of his dizziness symptomatology when experiencing increased allergy symptomatology. 3. Obtain an addendum VA examination opinion regarding the Veteran’s claimed low back disorder. If the examiner determines that an examination is necessary, the AOJ should schedule one for the Veteran. (a.) Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present low back disorder was incurred in or is etiologically related to the Veteran’s active service. (b.) the examiner must opinion whether this diagnosis was at least as likely as not incrementally increased by any of the Veteran’s service-connected disabilities. (c.) The examiner must address: (*) Service treatment records document a March 2002 low back disability. The examiner must address whether this condition is etiologically related to his current disability. (*) The examiner must address relevant treatment medical records which suggest a correlation between the Veteran’s current disability and service. Specifically, in October 2012 a private physician indicated that the Veteran’s use of a 30-pound military vest “exacerbate[d]” his chronic spine pain. (*) The examiner must also address the Veteran’s reports of on-going symptomatology. (*) If the examiner finds against the claim because of insufficient symptomatology/objective findings to support the claim the examiner must specify what evidence would support the claim. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.