Citation Nr: 20046629 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 08-14 488 DATE: July 13, 2020 ORDER Entitlement to a rating in excess of 60 percent for gout is denied. FINDING OF FACT The Veteran’s gout has been manifested by symptoms that more nearly approximate incapacitating exacerbations four or more times per year or a lesser number over prolonged periods; total incapacitation has not been demonstrated. CONCLUSION OF LAW The criteria for a disability rating in excess of 60 percent, for gout are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5002, 5017. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1984 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in pertinent part, granted service connection for gout and assigned an initial 20 percent rating effective November 29, 2006. In March 2010, the RO increased the rating to 40 percent, effective November 29, 2006. In May 2014, the Board, in pertinent part, remanded the claim for further development. In October 2014, the RO increased the evaluation to 60 percent effective August 7, 2014. In December 2015, the Board remanded the appeal for additional development. In April 2017, the Board issued a decision in which it increased the rating to 60 percent for the entire period under appeal. It denied a rating in excess of 60 percent. In April 2018, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand, vacating the Board’s decision and remanding for failing to properly consider whether an extraschedular rating was warranted. In July 2018, the Board remanded the claim so that the RO could refer the case for extraschedular consideration. Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran’s gout is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5017, which directs VA to rate gout under the criteria for rheumatoid arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5002, disability ratings are assigned based on whether gout is an active process or manifested by chronic residuals. For an active process, a 100 percent rating is assigned for constitutional manifestations associated with active joint involvement that is totally incapacitating. A 60 percent rating is assigned where manifestations are less than commensurate with criteria for a 100 percent but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods. A 40 percent rating is assigned with 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 assigned for one or two exacerbations a year in a well-established diagnosis. 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 to the Code provides that the rating for active process cannot be combined with that for residuals based on limitation of motion or ankylosis; the higher rating is to be assigned. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Based on review of the medical and lay evidence, the Board finds that total incapacitation has not been demonstrated. In reaching this determination, the Board has considered the clinical findings as well as the Veteran’s competent and credible statements about the nature and severity of his condition as reported to VA examiners and clinicians, and in statements submitted in support of his appeal. At the outset the Board notes that review of the VA and private treatment records and VA examination reports in September 2008, August 2014, January 2018, and December 2018 do not reflect findings of weight loss and anemia that have resulted in severe impairment of health. The evidence, however, does indicate the Veteran’s gout has manifested with frequent and severely painful flare-ups that result in functional limitations due to severe pain, inflammation and limited mobility. The evidence shows that the Veteran has been on physician-prescribed medication for his gout, but it has only provided partial relief of his pain and inflammation, particularly during flare-ups. VA treatment records show the Veteran has been followed for gout for many years. He has been prescribed medication to treat this disability. In January 2007, the Veteran reported to a VA physician that he experienced gout flare-ups about 15 times a year. In November 2007, he reported to a private treating physician that he had gout flare-ups in his left elbow occurring every two to three months. Objective findings showed that his left elbow was warm and mildly red. There was reluctance to flex or extend secondary to pain. At a VA examination in September 2008, the Veteran reported that gout affected his ankles, wrists and elbows. Symptoms included stiffness, swelling, and pain. He reported limited function during gout attacks. He currently had a desk job but reported some problems “getting around.” Physical examination showed some limitation of motion in the elbows, wrists, and ankle. Uric acid levels were elevated, including during use of medication. X-rays were all within normal limits. The examiner concluded that the gout in the ankle, bilateral wrists and elbows, was symptomatic with pain, swelling recurring inflammation and flare-ups. The examiner noted that the effect of the gout on the Veteran’s occupation was some pain and problems getting around upon flare-up. In January 2009, a treating clinician noted that the Veteran presented with moderate/marked right wrist pain and decreased range of motion. The clinician was unable to objectively test the right wrist due to moderate swelling. The Veteran reported that he had had pain and swelling for the prior 30 days and was unable to hold objects in his hand. In a March 2009 letter, he reported that he experienced between 10 and 20 outbreaks of gout in less than 12 months. In the Veteran’s notice of disagreement, he reported that he had three to four gout attacks in the last six months. He stated that his gout flares made it difficult to work. At an August 2014 VA examination, the Veteran reported swelling and pain in his ankles, big toes, wrists and elbows. He reportedly experienced pain and swelling lasting for days despite medication, and at least 20 flare-ups per year. He also stated that the increased swelling and pain in his ankles and feet prevented him from wearing shoes and attending work. He reported that he occasionally uses a cane and a knee walker, mainly to assist with locomotion during flare-ups of his gout. He described pain and swelling in all the involved joints at different times causing severe, significant disability. The VA examiner noted that the Veteran had a diagnosis of gout since 2000. The gout affected his bilateral elbows, wrists, ankles, foot/toes. The Veteran required continuous use of medication for his gout but did not experience any resultant weight loss or anemia. The Veteran did not have any limitation of joint movement attributable to his gout; but he did have joint deformities involving a large bursal formation in both elbows and swollen tender great toes. The examiner indicated that the Veteran experienced four or more incapacitating episodes due to his gout per year, with the most recent occurring two days prior to the examination. Specifically, severe pain and swelling prevented the Veteran from putting on his shoes and going to work. He remained in bed at home until he recovered, which typically took about two to three days. The Veteran was observed to be wearing slippers during the examination. The examiner explained that the symptoms of pain and swelling in all of the affected joints caused severe significant disability upon flare-up. The examiner also noted that the Veteran had been totally incapacitated for less than one week in the prior 12 months. Other pertinent physical findings included bilateral bursa in the elbows and bunion deformity bilaterally. The examiner opined that the Veteran’s gout impacted his ability to work because he had to take off work during flare-ups. The examiner further noted that osteoarthritis developed in the affected joints in patients with gout. Although the Veteran reported decreased range of motion during flare-ups, the examiner could not confirm such statements without resorting to speculation. Upon examination of his elbow and forearm, the Veteran reported severe pain and swelling in both elbows several times a year. Physical examination revealed that his right and left elbow had a normal range of motion. The examiner noted functional loss in the right elbow and forearm due to less movement than normal resulting from tenderness and pain on palpation. There was no evidence of ankylosis. Pertinent physical findings were reported as bursal formation over the olecranon area bilaterally. X-ray imaging of the bilateral elbow area showed evidence of moderate degenerative changes with no significant joint effusion. The examiner wrote that during flare-ups the Veteran’s elbow/forearm impacted his ability to work. During the ankle examination, the examiner noted that there was evidence of functional loss due to less movement than normal and pain on movement in the ankles. No evidence of ankylosis was noted. The examiner wrote that the Veteran’s ankle condition impacted his ability to work due to pain, swelling and inability to wear shoes. X-ray imaging of the right ankle were most significant for mild hallux valgus deformity and moderate to severe degenerative changes at the first MTP joint. The left ankle findings showed mild hallus valgus deformity with severe osteoarthritis at the first MTP joint. During the foot examination, the Veteran described pain involving mainly his big toes in both feet, which impacted his ability to function during a flare-up. He also reported difficulty walking and wearing shoes during a flare-up. The examiner noted that hallux rigidus is a progression of gout. The physical examination revealed pain in the right and left foot with functional loss. X-ray results of the feet showed degenerative changes related to gouty arthropathy. Physical examination of the wrists showed reduced range of motion bilaterally. X-ray findings of the right wrist were most significant for evidence of moderate to severe radiocarpal joint spacing narrowing with subchondral sclerosis and osteophyte formation. His left wrist showed findings of mild radiocarpal joint space narrowing with no evidence of chondrocalcinosis. In a December 2016 statement, the Veteran described his gout attacks as “crippling.” The Veteran underwent a VA examination in January 2018. He complained of burning, intermittent swelling, and pain in his bilateral ankles and great toes. He deemed the pain to be 10/10 during flare ups, impacting ambulation and grooming. He took Indocin and Tylenol with codeine by mouth during flare ups, and allopurinol by mouth daily. He denied loss of weight due to gout. There was no anemia. He reported four or more exacerbations per year that were not incapacitating. He stated that most non-incapacitating exacerbations lasted two weeks. His most recent non-incapacitating exacerbation occurred in December 2017. He also reported, on average, two incapacitating exacerbations per year, with each lasting less than one week. His most recent incapacitating exacerbation occurred in August 2017. The examiner found that the Veteran’s gout was not manifested by constitutional manifestations associated with active joint involvement which were totally incapacitating. The Veteran’s gout was not manifested by weight loss and anemia productive of severe impairment of health. The gout was manifested by severely incapacitating exacerbations occurring four or more times per year. It was not manifested by a symptom of combinations productive of definite impairment of health objectively supported by examination findings. The functional impact of gout on his employment was that he experienced exacerbations manifested by swelling and burning pain that resulted in several lost days at work. The Veteran underwent another VA examination in December 2018. He reported the need for continuous medication in the form of oxycodone, Indocin, colchicine, tiger balm, and capasacin cream. He denied loss of weight and anemia. He reported four or more exacerbations per year that were not incapacitating. He stated that most non-incapacitating exacerbations lasted a few days. His most recent non-incapacitating exacerbation occurred in December 2018. The exacerbations were described as cold triggered extensive pain and stiffness. He denied incapacitating exacerbations. The examiner found that the Veteran’s gout was not manifested by constitutional manifestations associated with active joint involvement which were totally incapacitating. The Veteran’s gout was not manifested by weight loss and anemia productive of severe impairment of health. The gout was not manifested by severely incapacitating exacerbations occurring four or more times per year. It was not manifested by a symptom of combinations productive of definite impairment of health objectively supported by examination findings. The functional impact of gout on his employment is that walking, sitting, and standing were all painful. The Veteran also reported that he could not do much except get into a hot shower. He stated that he was unable to cook or clean during flare-ups, and it took him a long time to get to the restroom. The record does not support a finding of total incapacitation for any appeal period since the grant of service connection. The 2008 VA examination report shows the Veteran was employed, although he had some problems getting around on flare-up. Physical examination showed some limitation of motion in the elbows, wrists, and ankle but no ankylosis was present. Further, neither the Veteran nor the examiner indicated that he was completely unable to function due to gout, including during flare-ups. The August 2014 VA examination, which was conducted within two days of an exacerbation, showed only minimal limitation of motion of the affected joints attributable to the gout. The Veteran has not asserted that he has been totally incapacitated due to his gout symptoms throughout the appeal. As noted at the August 2014 examination, he only reported one instance of total incapacitation and that reportedly lasted less than one week. As reflected by statements made to VA examiners and other clinicians, the Veteran has been employed and able to attend his job, except during times of severe flare-ups. He has maintained his ability to drive, ambulate, and work although some mobility is limited due to pain and inflammation during times of severe flare-ups requiring use of an assistive device. The evidence shows that in August 2016, the Veteran attempted to obtain disabled placards from his local Department of Motor Vehicles because the gout limited his ability to walk far. In March 2017, the Veteran reported to his primary care physician that he did not receive his medication and thus had two major gout episodes, but he did not report total incapacitation during these episodes. None of the VA examiners, or VA or private clinicians has indicated that the Veteran’s gout has been totally incapacitating throughout the appeal period. Thus, the preponderance of the evidence is against a total rating for gout at any time since the grant of service connection. In exceptional cases an extraschedular rating may be provided. See 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In a July 2018 Remand, the Board instructed the RO to refer the case for extraschedular consideration under 38 C.F.R. § 3.321. In December 2019, the Executive Director of Compensation Services issued an advisory opinion in which extraschedular ratings were denied. She noted that although the medical evidence of record shows ongoing treatment for gout, with complaints of episodes of gout occurring two to three times per month, resulting in the loss of one to two weeks of work per year, the objective evidence of record fails to corroborate incapacitating episodes creating marked interference with employment. She further noted that the evidence does not reveal frequent hospitalizations due specifically to gout or treatment for gout. She found that the evidence of record does not show that the currently assigned, or available, schedular evaluations for gout are inadequate due to exceptional or unusual circumstances. Extra-schedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. No unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. The Executive Director of Compensation Service has determined the available medical evidence does not support a higher evaluation on an extra-schedular basis for gout. The rating criteria adequately contemplates the severity and symptoms of the Veteran’s gout which include pain, swelling, inflammation, limitation of motion that result in impairment of health and incapacitating episodes due to flare-ups. See 38 C.F.R. § 4.71a, Diagnostic Code 5002. Although the Veteran’s gout is shown to cause some interference with employment, the schedular criteria adequately address the interference with employment in so far as it compensates the Veteran for incapacitating episodes that would preclude him from working. Further, to the extent that the Veteran has symptoms of kidney stones and urinary incontinence associated with gout, separate claims for service connection are currently pending before the AOJ. To the extent that the Veteran’s gout causes any additional mental stress, he is currently service connected for posttraumatic stress disorder and receiving compensation for psychiatric symptoms. After applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Additionally, the Veteran has not explicitly requested referral for a collective extraschedular rating (e.g. a compound/combined impact of multiple service-connected disabilities), and such a request has not been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484 (2016). Finally, a claim for a total disability rating based on individual unemployability has not been raised by either the Veteran or by the record in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The record reflects that the Veteran is currently employed. He has not specifically asserted that his service-connected gout has rendered him unemployable and the evidence does not otherwise suggest the same. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.