Citation Nr: 21000887 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-34 459 DATE: January 6, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for medial epicondylitis of the right elbow is denied. Entitlement to an initial compensable rating of 10 percent for tendonitis of the left-hand effective August 29, 2012 is granted. Entitlement to an initial rating in excess of 20 percent prior to October 29, 2019 for gout is denied. Entitlement to a rating of 40 percent as of October 29, 2019 for gout is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s medial epicondylitis of the right elbow manifested painful motion and flexion limited to no more than 120 degrees. 2. Throughout the appeal period, the Veteran’s left thumb manifested painful motion. 3. Prior to October 29, 2019, gout involving the toes was manifested by one or two exacerbations a year. 4. As of October 29, 2019, gout involving the toes is manifested by incapacitating exacerbations occurring three times a year. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for medial epicondylitis of the right elbow are not met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.3 , 4.7, 4.10, 4.71a, DC 5206. 2. The criteria for a rating of 10 percent for tendonitis of the left hand are met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.3 , 4.7, 4.10, 4.71a, DC 5228. 3. The criteria for a rating in excess of 20 percent for gout prior to October 29, 2019 are not met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.3 , 4.7, 4.10, 4.71a, DCs 5002, 5017. 4. The criteria for a rating in excess of 40 percent for gout as of October 29, 2019 are not met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.3 , 4.7, 4.10, 4.71a, DCs 5002, 5017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1990 to October 2002, December 2002 to May 2004 and June 2008 to May 2011. In April 2020, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2020, the Veteran testified at a Board hearing. The transcript is of record. The Board notes that the Veteran’s claims of entitlement to service connection for tendonitis of the left and right shoulder, and lumbar spine were granted in an October 2020 rating decision. As such, this issue is no longer on appeal and the Board does not have jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where 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 a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to an initial rating in excess of 10 percent for medial epicondylitis of the right elbow effective August 29, 2012 The Veteran contends he is entitled to a higher rating as he has worsening pain and difficulty moving his elbow. Disabilities of the elbow and forearm are rated under multiple diagnostic codes depending on the symptoms and range of motion test. See 38 C.F.R. § 4.71a, DC 5205-5213. The diagnostic codes relevant to the Veteran's right elbow fracture residuals are discussed further below. Under 38 C.F.R. § 4.59, handedness for rating purposes is determined by evidence of record but only one upper extremity shall be considered dominant. In this case, the record reflects that the Veteran is right-handed. The Veteran’s medial epicondylitis of the right elbow (elbow condition) is currently rated at 10 percent under DC 5206. Under DC 5206, a 10 percent rating is warranted for the elbow of the major extremity where there is forearm limitation of flexion to 100 degrees. For a 20 percent disability evaluation, there must be limitation of forearm flexion to 90 degrees. For a 30 percent disability evaluation, there must be limitation of forearm flexion to 70 degrees. For a 40 percent disability evaluation, there must be limitation of forearm flexion to 55 degrees, and for a 50 percent disability evaluation there must be limitation of forearm flexion to 45 degrees. See 38 C.F.R. § 4.71a, DC 5206. Under DC 5207, a 10 percent rating is warranted for the elbow of the major extremity where there is forearm limitation of extension to 45 and 60 degrees. For a 20 percent disability evaluation, there must be limitation of forearm extension to 75 degrees. For a 30 percent disability evaluation, there must be limitation of forearm extension to 90 degrees. For a 40 percent disability evaluation, there must be limitation of forearm extension to 100 degrees, and for a 50 percent disability evaluation there must be limitation of forearm extension to 110 degrees. See 38 C.F.R. § 4.71a, DC 5207. DC 5208 assigns a rating of 20 percent when flexion of the elbow is limited to 100 degrees and extension to 45 degrees, of the major or minor upper extremity. Normal flexion of the elbow is to 145 degrees and normal extension is to zero degrees. Normal pronation of the forearm is to 80 degrees, and normal supination is to 85 degrees. Normal dorsiflexion of a wrist is to 70 degrees and normal palmar flexion is to 80 degrees. Normal ulnar deviation of a wrist is to 45 degrees, and normal radial deviation is to 20 degrees. See 38 C.F.R. § 4.71a, Plate I. In January 2014 the Veteran underwent a VA examination and reported aching pain in the elbow exacerbated by exertional activity. He described flare-ups that occurred with exertional activity lasting two days with pain that radiated distally through the forearm and hand and prevented carrying or exertion with the right arm. Range of motion testing revealed no limitations and repetitive use testing revealed no additional loss but there was pain on movement. The Veteran had tenderness and/or pain on palpation, normal muscle strength, no ankylosis and no flail joint, joint fracture and/or impairment of supination or pronation. The examiner found insufficient evidence to provide a prediction of decreased functional ability with repetitive use over a period of time or during flare-ups. The Veteran attended another VA examination in July 2017. He denied flare-ups but reported functional loss described as episodic pain twice a week which occasionally interrupts sleep. The Veteran reported pain that occurred spontaneously in non-weight bearing or when provoked by movement and activity, such as typing and grasping objects. Range of motion testing revealed flexion to 120 degrees, extension from 120 degrees to zero, forearm supination to 60 degrees and forearm pronation to 45 degrees. The examiner reported the presence of pain on examination and the inability to make normal movements, such as fully extending the arm to reach for objects. The Veteran displayed pain with weight-bearing and had objective pain and/or tenderness of the medial aspect of the elbow described as an intensity of five out of ten but no crepitus. He also reported pain with passive range of motion and with non-weight bearing. Repetitive use testing did not result in additional loss of motion and the examiner cited speculation as to whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time. The examination revealed normal muscle strength and no ankylosis. Functionally, the examiner concluded that the Veteran’s elbow impacts his ability to perform physical job activities such as carrying and lifting. The Veteran alleged limitations in his ability to work at a keyboard and type, which the examiner noted would limit the ability to be successful at sedentary job positions. In September 2020 the Veteran attended another VA examination. He reported persistent pain upon waking in the morning and with prolonged use located around the elbow which intermittently radiates down the forearm. The Veteran described flare-ups as worsening pain in the morning and with heavy lifting and functional loss described as difficulty lifting or carrying heavy objects in an extended period of time. Range of motion testing revealed flexion to 145 degrees, extension to zero degrees, forearm supination to 85 degrees and pronation to 80 degrees with pain but no functional loss. The Veteran did not have tenderness or pain on palpation or crepitus but did have pain with weight-bearing. Repetitive use testing did not result in additional loss of motion. The examiner found that pain significantly limited ability with repeated use over a period of time and flare-ups resulting in an additional limitation of forearm supination to 70 degree. The Veteran had normal muscle strength, no muscle atrophy or ankylosis. The Veteran did not display flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. He did have pain with non-weight-bearing and passive range of motion that was the same as active. Functionally, the examiner concluded that the Veteran would have issues with physical activities such as lifting or carrying heavy objects for an extended period. The record contains medical treatment records however they do not have detailed measurements of the Veteran's range of motion for his right elbow or reveal evidence of ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. At the hearing, the Veteran testified that his elbow cracks and causes constant pain and weakness resulting in limited movement. He also stated that he has flare-ups and difficulty sleeping. In order for the Veteran to warrant a rating in excess of 10 percent, the evidence must reveal, at least, flexion limited to 90 degrees or extension limited 75 degrees; however, throughout the appeal period, range of motion testing reflects flexion limited to, at most, 120 degrees and no limitation on extension. As such, a higher disability rating under DC 5206 or 5207 is not warranted. The Board considered the Veteran’s lay statements regarding pain and functional loss and finds that his right elbow symptomatology is adequately contemplated by his 10 percent disability rating under 38 C.F.R. § 4.59. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board also considered whether separate compensable evaluations or higher rating are warranted for the right elbow under other applicable provisions of the Diagnostic Code. For the following reasons, the Veteran does not warrant a separate or higher rating for his right elbow condition. Diagnostic Code 5205 ratings are provided when there is ankylosis of the elbow; however, the evidence of record does not establish ankylosis of the elbow at any time during the period on appeal. Under Diagnostic Code 5209 ratings are provided when there is other impairment of the elbow from a flail joint. Diagnostic Code 5210 provides for ratings when there is nonunion of the radius or ulna, with false flail joint. Diagnostic Code 5211 provides for ratings for nonunion or malunion of the ulnar, and Diagnostic Code 5212 provides for ratings for nonunion or malunion of the radius. In this case, the evidence does not establish nonunion or malunion of the radius or ulna or flail joint or false flail joint of the elbow at any time during the period on appeal. Thus, Diagnostic Codes 5209 – 5212 are not applicable. DC 5213 assigns compensable rating for supination and pronation impairment of loss of bone fusion and limitation in motion. In order to warrant a compensable rating, the Veteran must have limitation of supination of 30 degrees or less; pronation with motion lost beyond middle arc or beyond last quarter or loss of bone fusion. The evidence establishes limitation of motion for supination of, at most, 60 and for pronation of, at most, 45 degrees and no bone fusion. As such, a separate rating is not warranted under DC 5213. Accordingly, a rating in excess of 10 percent is not warranted and the claim is denied. 2. Entitlement to an initial compensable rating for tendonitis of the left-hand effective August 29, 2012 The Veteran contends that he is entitled to an increased rating for his left hand due to severe pain that makes it difficult to move the hand. Diagnostic Code (DC) 5228 applies to limitation of motion of the thumbs. 38 C.F.R. § 4.71a . Under DC 5228, a 0 percent rating is assigned for limitation of motion of the thumb with 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 rating is assigned when there is a gap of one to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. There is no differentiation in the ratings assigned for the major and minor hands under DC 5228. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court has held that the provisions of 38 C.F.R. § 4.59 have bearing even with respect to joint disorders that do not involve arthritis. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court determined that the above regulation provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, which involve residuals of injuries in non-arthritis contexts. The Veteran attended a VA examination in October 2013. Range of motion testing revealed painful motion of the thumb. The Veteran had a gap between the thumb pad and the fingers of less than one inch with pain beginning at a gap of one to two inches. There was no gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips or limitation of extension or evidence of painful motion for the index finger or long finger. Repetitive use testing did not result in additional limitation of motion. The Veteran had tenderness and/or pain on palpation, normal muscle strength, and no ankylosis. Imaging studies revealed no abnormal findings. Functionally, the Veteran had pain with range of motion affecting strength for pushing, pulling and twisting and affecting dexterity for twisting, writing, probing, touching and expression. In July 2017 the Veteran attended another VA examination. The examiner noted a diagnosis of traumatic arthritis but there were no imaging studies conducted. The Veteran reported no flare-ups, but functional loss described as episodic hand stiffness and pain twice a week that occurred in both non-weight bearing and load-bearing situations. He described pain that lasted all day and increased with movement and activities such as manipulating utensils and grasping tools. Range of motion testing of the index finger, long finger, ring finger and little finger revealed maximum extension to zero and maximum flexion to 90 degrees for metacarpophalangeal (MCP) joint and 100 degrees for the proximal interphalangeal joints (PIP) joint and 70 degrees for the distal interphalangeal (DIP) joint. For the thumb, the Veteran had extension to zero and maximum flexion of the MCP joint to 50 degrees and of the interphalangeal joint (IP) to 40 degrees. There was a gap between the thumb and fingers of two centimeters (cm) but no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The Veteran had pain on motion with opposition with the thumb resulting in the inability to fully grasp objects and limited ability to engage in fine motor tasks. The Veteran had pain with use of the hand and tenderness to palpation of the left thumb with an intensity of five out of ten. Repetitive use testing did not result in additional loss of motion or function. The examiner cited speculation as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or with flare-ups. Examination revealed reduced muscle strength of four out of five, no muscle atrophy, and no ankylosis. Functionally, the examiner concluded that the left thumb condition impacts the ability to perform physical activities such as carrying, lifting, using a keyboard, utensils and tools, which limits his ability to succeed at sedentary job positions. The Veteran underwent another VA examination in September 2020. He reported intermittent left thumb pain that varied in intensity located over the left thenar eminence and radiated to the wrist occasionally. The Veteran denied flare-ups but described functional loss of difficulty gripping or lifting objects. Range of motion testing of the index finger, long finger, ring finger and little finger revealed maximum extension to zero and maximum flexion to 90 degrees for MCP joint and 100 degrees for the PIP joint and 70 degrees for the DIP joint. For the thumb, the Veteran had extension to zero and maximum flexion of the MCP joint to 40 degrees and of the IP to 50 degrees. There was no gap between the pad of the thumb and the fingers and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was no pain on examination, no pain with use of the hand, and no objective evidence of tenderness or pain on palpation. There was no additional loss of motion or function after repetitive use testing. Repeated use over time resulted in additional loss of motion of maximum flexion of the IP joint to 40 degrees due to pain. Examination revealed normal muscle strength, no muscle atrophy, and no ankylosis and no pain on non-weight or with passive range of motion. Functionally, the examiner concluded that the Veteran would have issues with persistent lifting or gripping objects for an extended period of time. The record contains medical treatment records however they do not have detailed measurements of the Veteran's range of motion for the thumb or fingers. At the hearing, the Veteran testified that he has stiffness, reduced motion and weakness in the left hand that results in the need for extra breaks at work. The Board finds that the Veteran’s painful and limited motion of the left thumb resulting in functional loss most closely approximates the criteria contemplated by a 10 percent rating pursuant to 38 C.F.R. § 4.59. See also Burton, 25 Vet. App. at 3-5. A rating in excess of 10 percent is not warranted as the evidence does not establish ankylosis or a gap of more than two inches between the thumb pad and the fingers at any point during the appeal period. 38 C.F.R. § 4.71 (a), DC 5224, 5228. Therefore, a rating of 10 percent is warranted effective August 29, 2012. 3. Entitlement to an initial rating in excess of 20 percent prior to September 14, 2020 and in excess of 40 percent thereafter for gout The Veteran contends he is entitled to a higher rating for gout due to continuous pain in the left foot and a procedure conducted in March 2014, which affected the bones in his foot. An August 2019 rating decision granted a 20 percent rating for gout effective October 8, 2013, the date of claim, for attacks that occur approximately two times per year. The Veteran received an increased rating to 40 percent effective September 14, 2020 based on the findings of the VA examiner of incapacitating exacerbations occurring three or more times a year. See Rating Decision October 2020. According to DC 5017 gout is rated under DC 5002 (for rheumatoid arthritis), either as an active process or for chronic residuals. As an active process, gout warrants a 20 percent rating when there are one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is warranted with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent rating is warranted with manifestations less than those in the criteria for 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 100 percent rating is warranted with constitutional manifestations associated with active joint involvement, totally incapacitating. However, under a note following DC 5002, ratings for an active process may not be combined with ratings for chronic residuals. 38 C.F.R. § 4.71a, DCs 5017, 5002. DC 5002 further provides that for chronic residuals such as limitation of motion or ankylosis are rated 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 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. The note to DC 5002 instructs that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankyloses. The higher rating should be assigned. Id. The Veteran underwent a VA examination for muscle injuries related to gout in July 2017. The Veteran reported a series of attacks that characteristically present with pain of the great toe of either the right or left foot that occurs approximately twice a year. The examiner noted a muscle injury affecting muscle group X bilaterally, which consists of the flexor digitorum brevis, abductor hallucis, abductor digiti minimi, quadratus plantae, lumbricales, flexor hallucis brevis, adductor hallucis, flexor digiti minimi brevis, dorsal and plantar interossei. Examination revealed normal muscle strength and no muscle atrophy. Functionally, the examiner noted that the pain during acute gouty episodes can be severe, with even minor pain being disabling. The Veteran’s gout impacts his ability to perform physical jobs due to limited use of feet and legs from pain and the pain impacts his ability to perform sedentary work as his ability to focus, concentrate and interact is limited by pain. In September 2020 the Veteran underwent a VA examination for arthritis and stated that he has two to three flare-ups a year described as pain in either the right or left big toe and the need for continuous medication. The examination reported no weight loss or anemia due to gout, no pain with or without joint movement, no limitation of motion, no joint deformity or involvement of any other symptoms and no incapacitating episodes. The examiner did find that the Veteran has incapacitating episodes consisting of severe pain and swelling in the big toe lasting less than a week that occur three times a year with the most recent episode occurring in August 2020. The examiner concluded that gout is not manifested by constitutional manifestations associated with active joint involvement which are totally incapacitating, weight loss and anemia productive of severe impairment of health, severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods or symptom combinations productive of definite impairment of health objectively supported by examination findings. Review of the medical records reveals treatment for gout attacks in May 2012 and in June 2016, where the Veteran reported a history of two to three attacks per year. In December 2016 the Veteran had another exacerbation of gout in the left big toe and examination revealed that the first MCP joint of the left foot was warm, swollen and tender to the touch. In September 2019 the Veteran reported having only a couple gout attacks a year but in October 2019 he reported experiencing two to three gout attacks a year. The Veteran received treatment for a gout flare in March 2020 and reported pain and swelling in the first through fourth MTP joints with reduced range of motion in the toes due to pain. The Veteran also had a flare-up of gout in July 2020 resulting in a trip to the emergency department and examination revealed that the foot was warm and erythematous with swelling. At the hearing, the Veteran testified that he has flare-ups about three to four times a year described as severe pain that affects his ability to sleep and walk. For the following reasons, the Board finds that a rating of 20 percent prior to October 29, 2019 and a rating of 40 percent thereafter for gout is warranted. At the July 2017 VA examination and in September 2019 the Veteran reported that his gout attacks occur approximately twice a year. This is consistent with the medical evidence revealing treatment for flares in May 2012 and June and December 2016. However, on October 29, 2019 the Veteran reported experiencing flares two to three times a year that affects his first toes bilaterally, which he also reported at the September 2020 VA examination. The medical and lay evidence of records support the contention of an increase in attacks from October 2019 as the Veteran experienced flares in March, July and August of 2020. Thus, the Board finds when resolving all doubt in favor of the Veteran, a rating of 40 percent is warranted as of October 29, 2019. The Board finds that a rating in excess of 40 percent is not warranted. A higher rating is warranted with manifestations less than those in the criteria for 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. The Board considered the Veteran’s testimony that he experiences flare-ups about three to four times a year at the March 2020 hearing; however, in October 2019, a few months prior to the hearing and in September 2020 several months after the hearing, the Veteran reported experiencing two to three gout flare-ups a year, which, as discussed, is supported by the medical and lay evidence establishing three flares during 2020. As such, due to the inconsistency of the Veteran’s reports a higher rating is not warranted on that basis alone, as the evidence does not establish severely incapacitating exacerbations occurring four or more times a year. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board considered notes the July 2017 VA examiner’s finding of a muscle injury affecting Muscle Group X bilaterally. Muscle injuries affecting group X are rated under DC 5310, which states that a slight injury is noncompensable; a moderate injury is 10 percent disabling, a moderately severe injury is 20 percent disabling, and a severe injury is 30 percent disabling. Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule or in the regulations. As such, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just as contemplated by the requirements of the law." 38 C.F.R. § 4.6. The July 2017 examination revealed normal muscle strength and no muscle atrophy. While the examiner noted that the pain can be severe during gouty episodes, he described the condition as acute gouty episodes with transient minor injury which resolves without chronic, ongoing injury. As such, the Board finds the evidence does not establish a severe muscle injury, which is required for a 30 percent rating; thus, a higher rating is not warranted under DC 5310. Furthermore, as the Veteran’s symptoms are already contemplated under DC 5017, a separate rating is not permissible. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In conclusion, the Veteran’s gout warrants a rating of 20 percent effective October 8, 2013 and a rating of 40 percent as of October 29, 2019. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.