Citation Nr: 21000008 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-06 054 DATE: January 4, 2021 ORDER 1. Entitlement to a rating in excess of 60 percent for gouty arthritis of both feet and both knees is denied. 2. Entitlement to service connection for right foot hallux valgus is granted. 3. Entitlement to service connection for left foot hallux valgus is granted. FINDINGS OF FACT 1. The Veteran’s gouty arthritis of both feet and both knees is not shown to have been manifested as (or approximating) an active process with constitutional manifestations that are totally disabling; limitations of foot and knee motion are not so severe as to warrant a combined rating (with application of the bilateral factor) in excess of 60 percent. 2. Competent (medical) evidence reasonably established that the Veteran’s service-connected gout/gouty arthritis caused/substantially contributed to cause his bilateral hallux valgus deformity. CONCLUSIONS OF LAW 1. A rating in excess of 60 percent for gouty arthritis of both feet and both knees is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes (Codes) 5017, 5002, . 2. Service connection for right foot hallux valgus is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Service connection for left foot hallux valgus is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1987 to May 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2015 (continuing 10 percent ratings for gout in both feet) and April 2017 (denying service connection for hallux valgus) rating decisions. The issue of entitlement to increased ratings was remanded by the Board in August 2018. That remand also sought further development in the matters of service connection for hallux valgus. In July 2019 the Board remanded the issues of service connection for right and left foot hallux valgus for development. In a June 2020 statement the Veteran expressed a desire for a higher-level review of his claims under the framework of the Appeals Modernization Act (AMA). That letter was determined to be inadequate to transfer the matters to the AMA framework, and the Board will proceed with review under the Legacy framework. See 38 C.F.R. § 20.202 (c)(2). Increased Rating 1. Entitlement to a rating in excess of 60 percent for gouty arthritis of the feet and knees is denied. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issues on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here 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. The Veteran’s gout was initially rated 10 percent for each foot under 38 C.F.R. § 4.71A, Code 5284, (for moderate injury of each foot). A June 2020 rating decision combined the ratings for gouty arthritis, rated as an active process under Code 5002, and assigned a 60 percent rating from July 31, 2015, the date of the claim for increase. The relevant period for consideration on appeal begins one year prior to that date. For gout as an active process, a 20 percent rating is to be assigned for one or two exacerbations a year. A 40 percent rating is to be assigned for symptom 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 to be assigned when the requirements for a 100 percent rating are not met, but with 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. A 100 percent rating is granted for constitutional manifestations associated with active joint involvement, resulting in total incapacitation. Gout may alternatively (whichever method is more favorable be rated based on [a combination of ratings, with bilateral factor applied for] chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, under the appropriate diagnostic codes for the specific joints involved. Where, the limitation of motion of a specific joint involved is noncompensable under the applicable code, a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A note following provides that ratings for active process will not be combined with ratings for ankylosis of limitation of motion. 38 C.F.R. § 4.71a, Codes 5002, 5017. VA treatment records show that the Veteran reported having attacks of gout in August 2014 and May 2015. However, the record (beginning a year prior to July 31, 2015) does not show evidence of chronic residuals, limited motion, or ankylosis. [The Board observes that higher ratings for chronic residuals for gout under Code 5284 would be inappropriate. Code 5284 applies to “injuries” of the foot. See Yancy v. McDonald, 27 Vet. App. 484, 492-493 (2016) (the application of Code 5284 is limited to disabilities resulting from actual injury to the foot). Gout is not an “injury,” but a disease caused by hyperuricemia. Centers for Disease Control and Prevention. Gout. https://www.cdc.gov/arthritis/basics/gout.html. Accessed December 18, 2020. The evidence does not show that the Veteran’s feet are ankylosed or that motion of either foot is limited to a degree warranting a rating in excess of 10 percent under any foot rating criteria (Codes 5276-5284). Furthermore, while gouty arthritis has been found in each knee, the evidence of record does not show that either knee is ankylosed or has actual limitation of flexion and/or extension that would warrant a rating for either knee in excess of 10 percent (for painful motion). Consequently, rating the gout based on a combination of ratings for chronic residuals (with bilateral factor added) results in a combined rating of 40 percent (which is not more favorable). See 38 C.F.R. §4.25. Turning to rating the gout as an active process, the Board notes that for the year prior to July 31, 2015 a finding of one or two exacerbations a year warrants a 20 percent rating, which is not more favorable than the rating that was assigned by the AOJ (rating the disability as foot injury). The record for that period is sparse, and does not show evidence of symptom combinations productive of definite impairment of health, objectively supported by examination findings or incapacitating episodes occurring 3 or more times a year. Therefore, a rating in excess of (the combined currently in effect) 20 percent rating for gout of the feet is not warranted. Regarding entitlement to a rating for gout (as an active process) in excess of 60 percent from July 31, 2015, the evidence does not show that the Veteran’s gout was at any time since that date manifested by constitutional manifestations associated with active joint involvement, resulting in total incapacitation. Related constitutional manifestations (such as weight loss, anemia) are not shown. October 2015 VA examinations of the feet and knees noted gout attacks occurring around 4 times a year and lasting 4 to 5 days. The examiner specifically noted that gout was not then a chronic condition that affected the Veteran’s gait year-round. The Veteran reported knee pain limiting his ability to stand no more than 15 minutes or walking 20 feet when unassisted, and that his ankles and toes flared about once a year due to gout. He reported pain on examination. A December 2016 private evaluation report notes that he was taking medication for gout of the feet and knees, without relief. A November 2019 VA medical opinion indicates that he had switched medications and had good control of his gout. His toe pain was now sporadic. On January 2020 VA examination it was noted that the condition had worsened, and that the Veteran now used a walker and motorized scooter to get around, with increased foot pain. On examination only foot pain was noted. There were no manifestations of weight loss or anemia. The Veteran was noted to have limitation of movement, but only in the feet and toes. The examiner stated that the Veteran had 4 or more non-incapacitating exacerbations a year, and one incapacitating episode a year, lasting less than a week. The examiner stated that the gouty arthritis was not manifested by constitutional manifestations associated with active joint involvement which are totally incapacitating. The examiner found that the disability was manifested by severely incapacitating exacerbations occurring more than 4 times a year. The Veteran constantly used a cane, and during the exacerbations used a walker. He related that he was able to walk only 3 to 5 minutes before stopping due to foot pain, and not able to shop for groceries without a motorized cart. To the extent the Veteran contends that his condition is more severe than reflected by his current ratings, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has no reason to question the credibility of his accounts that due to gouty arthritis he is severely impacted in ability to walk more than short distances, uses a cane constantly and a walker during exacerbations, and requires a motorized cart for shopping for groceries. However, such limitations are encompassed by the criteria for the current 60 percent rating assigned for his gout as an active process. To warrant he next higher (100 percent) schedular rating for gout, there must be evidence of constitutional manifestations with active joint involvement that are totally incapacitating. Because he is a layperson, the Veteran is not competent to establish by his own observations that he has constitutional manifestations (such as anemia, weight loss) due to gout. That requires medical expertise (informed by diagnostic studies). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Considering the foregoing, the Board finds the conclusions by the medical professionals who examined the Veteran that he does not have constitutional manifestations of gout (that are totally incapacitating) the most probative evidence in the matter, and persuasive. The clinical record of record is consistent with those findings. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal seeking a rating in excess of 60 percent for gouty arthritis must be denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection 2., 3. Entitlement to service connection for right and left foot hallux valgus is granted. The Veteran contends that his bilateral hallux valgus was caused or aggravated by his service-connected gout. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is warranted for disability that was caused or aggravated by a service-connected disability. 38 C.F.R. §3.310.  April 2012 medical imaging revealed a mild soft tissue prominence (bunion) on the left foot, and no osseous abnormality of the right foot. A VA foot examination from October 2015 was negative for hallux valgus, but found gouty arthritis. August 2016 VA treatment records show bunions (and suggest bilateral involvement), with significant deformity. A December 2016 private record notes laterally deviated hallux, bilaterally and decreased range of motion in the first metatarsophalangeal joints. It was noted that the Veteran had hallux rigidus as well as hallux valgus, and that the hallux valgus was “acquired.” On October 2017 VA examination the Veteran was found to have bilateral hallux valgus, with mild to moderate symptoms. The Veteran had not had surgery. The examiner opined that the Veteran’s hallux valgus was less likely than not proximately due to or the result of the Veteran’s service-connected gout, explaining that the two conditions are not medically related as hallux valgus is a completely separate entity, and a link is not supported by medical literature. On November 2019 VA examination mild to moderate bilateral hallux valgus was again noted; it was noted that the Veteran wore wide-toed shoes to alleviate pain. In a section of the Disability Benefits Questionnaire (DBQ) for addressing conflicting medical evidence (the examiner was instructed to consider submitted medical literature that contradicted the October 2017 VA opinion), the examiner stated that the Veteran had a long history of gout and the most common presentation of gout is in the great toe. The examiner noted that hallux valgus is a deviation of the great toe that can be caused by, among other things, gouty arthritis. The examiner stated that “given this known pathophysiology a connection between his service-connected gout and hallux valgus is reasonable and the Veteran’s diagnosed bilateral hallux valgus is at least as likely as not aggravated by the service-connected gout.” The examiner noted that commenting on the baseline severity of the Veteran’s hallux valgus would be speculative, as the pain processes in both conditions are similar and present in the same location. A January 2020 VA examination continued to show mild to moderate hallux valgus, bilaterally. Considering the foregoing, the Board finds most probative regarding the etiology of the Veteran’s bilateral hallux valgus the opinion by November 2019 VA examiner. The October 2017 VA examiner’s opinion (against the claim) was conclusory, merely stating that medical literature does not support a nexus between hallux valgus and gout, without identifying the medical literature reviewed (and that they are separate conditions). The November 2019 VA examiner’s opinion (in support of the claims) discussed the pathophysiology of hallux valgus and indicated that gouty arthritis is a known factor for development of acquired hallux valgus (which is consistent with submitted medical literature). While the November 2019 examiner noted inability to establish a baseline severity for the aggravated condition, the overall opinion supports a conclusion that the Veteran’s hallux valgus was caused, and not aggravated, by gout (in which case a baseline level of severity is not necessary). The Board notes that the record shows only a mild hallux valgus on the left side in 2012 imaging and no hallux valgus or deformity in October 2015 records. However, by August 2016, the Veteran was noted to have a significant deformity bilaterally. The Veteran’s gout has been service-connected since 1991. Considering the record in the light most favorable to the Veteran, the Board finds that competent medical evidence reasonably establishes that the Veteran’s gout/gouty arthritis caused/contributed to case his bilateral hallux valgus, and that service-connection for bilateral hallux valgus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.310 (b); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.