Citation Nr: 21067548 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 09-40 075 DATE: November 4, 2021 ORDER A rating higher than 60 percent for gout of the bilateral great toes prior to September 16, 2019, is denied. A separate 10 percent rating for osteoarthritis of the bilateral great toes is granted. A 20 percent rating for degenerative arthritis and residuals of a fracture of the lateral malleolus of the right ankle (right ankle arthritis) as of July 14, 2017, but no earlier, is granted. A separate 20 percent rating for gout of the right ankle is granted. FINDINGS OF FACT 1. The Veteran's bilateral great toe gout does not more closely approximate totally incapacitating constitutional manifestations associated with active joint involvement. 2. The Veteran has a confirmed diagnosis of osteoarthritis in his bilateral great toes. 3. As of July 14, 2017, the Veteran's right ankle disability more closely approximated a marked disability. 4. The Veteran's right ankle gout had one or two exacerbations a year in a well-established diagnosis. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 60 percent for gout of the bilateral great toes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5017-5002. 2. The criteria for a separate rating for osteoarthritis of the bilateral great toes are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003. 3. The criteria for a 20 percent rating for right ankle arthritis as of July 14, 2017, but no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. 4. The criteria for a separate 20 percent rating for right ankle gout are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5017-5002. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 2008. He is the recipient of the Legion of Merit and the Bronze Star. These matters have an extensive procedural history which includes prior Board Decisions, numerous remands, and both a Memorandum Decision and Joint Motions for Partial Remands (JMRs) of the Court of Appeals for Veterans Claims (Court). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Gout of the Bilateral Great Toes Prior to September 19, 2016 Historically, a May 2017 Board decision granted the Veteran a 60 percent rating for his bilateral great toe gout as of September 16, 2019. In a June 2018 JMR the Veteran was noted to not have appealed the Board's denial of a rating higher than 60 percent as of September 2019. Thus, the period beginning on September 16, 2019, is not on appeal to the Board. Subsequently, a November 2020 rating decision increased the Veteran's bilateral great toe gout rating to 60 percent as of his July 2008 grant of service connection. The rating criteria applicable to the Veteran's bilateral great toe gout has been revised during the pendency of the Veteran's appeal. Prior to February 7, 2021, gout was rated using the criteria for rheumatoid arthritis. 38 C.F.R. § 4.71a (2020), DC 5017 (providing that "diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts except gout which will be rated under diagnostic code 5002"); see also Id. at DC 5002 (providing that a rating may be assigned based on the condition as an active process or as residuals resulting in limitation of motion, whichever is higher). Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. The Board has found that the criteria in effect prior to the revisions is more favorable to the Veteran and has applied those standards. Under the revised criteria, rating the Veteran's bilateral great toe gout as residuals resulting in limitation of motion does not result in a higher disability rating in this case. By analogy, DC 5278 discusses limitation of motion of the great tow and offers a maximum 10 percent rating. Therefore, the highest possible disability rating the Veteran could receive based on limitation of motion, given the evidence of record showing no ankylosis, would not exceed the 60 percent rating he has already been assigned. Thus, the previous version of the rating criteria is more beneficial to the Veteran. Under the previous version of the rating criteria, a 100 percent rating is the only rating available higher than the Veteran's currently assigned 60 percent. A 100 percent rating is warranted for gout with constitutional manifestations associated with active joint involvement, totally incapacitating. See 38 C.F.R. § 4.71a (2020), DC 5002. After review of the record, the Board does not find any evidence which would support a rating higher than 60 percent prior to September 19, 2016, for the Veteran's bilateral great toe gout. VA examinations conducted in January 2008, February 2011, January 2014, and September 2016 did not find that the Veteran's bilateral great toe gout was totally incapacitating. Additionally, podiatry and treatment records do not contain an indication that the Veteran's gout caused total incapacitation. See September 2008, January 2009, September 2010, April 2011, March 2013, May 2014, May 2016, and August 2016 treatment notes. The Veteran's statement prior to September 19, 2016, do not indicate that his bilateral great toe gout caused his total incapacitation. See July 2011 statement. In his prior Court submissions, the Veteran argued that the effects of his medication should not be taken into consideration. In this matter, the Board has considered the ameliorative effects of the Veteran's medication. However, there is no evidence that would support a finding that the Veteran's bilateral great toe gout was totally incapacitating prior to September 19, 2016, even without his medication. In the Veteran's own November 2019 Informal Hearing Presentation, he indicated that his gout caused severely incapacitating flare-ups. He did not state that his gout, even without medication, caused total incapacitation and there are not statements of record which indicate such severity. The 60 percent rating in effect directly considers the severely incapacitating nature of the Veteran's gout-flare ups. Finally, a September 2021 VA examination opinion noted that there was no documentation of a total incapacitation due to gout in the records. Notably, the Veteran has not identified any evidence which he claims supports a rating of 100 percent prior to September 19, 2016; nor has he introduced any such evidence into the record. As such, the Board finds that a rating higher than 60 percent for the Veteran's bilateral great toe gout prior to September 19, 2016, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Great Toe Arthritis In a prior Board remand, the issue of a separate rating for the osteoarthritis of the Veteran's bilateral great toes was raised. See March 2021 Board Remand. After review of the record the Board finds that such a rating is applicable. The Veteran's arthritis is confirmed on X-ray. See September 2020 VA examination opinion and January 2008 X-rays. Under DC 5003, degenerative arthritis, when substantiated by x-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, 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 5003. As such, the Board finds that a separate 10 percent rating for the osteoarthritis of the Veteran's bilateral great toes is warranted. Degenerative Joint Disease of the Right Ankle The Veteran has been diagnosed with both right ankle arthritis and right ankle gout. In an October 2015 Memorandum Decision, the Court stated that a determination of if the Veteran's right ankle warranted separate ratings for his conditions was warranted. The Board has found that the Veteran's right ankle arthritis and gout do warrant separate ratings. A September 2020 VA examination and opinion found that the Veteran had both degenerative arthritis as well as gout and that each condition caused separate symptomology. As with his bilateral great toes, the Veteran's right ankle disabilities are rated under criteria which was revised in 2021. Thus, the Veteran's right ankle disabilities have been considered under both old and new rating criteria. The Board has found that the criteria in effect prior to the revisions is more favorable to the Veteran and has applied those standards. Specifically, the new rating criteria mandate specific range of motion measurements which the Veteran's right ankle has not met during the course of his appeal. The Veteran's right ankle arthritis is rated under DC 5271 which provides that moderate limitation of motion warrants a 10 percent rating and marked limitation of motion warrants a 20 percent rating. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II. The Veteran's right ankle limitation of motion has a 10 percent rating since his July 2008 grant of service connection. After review of the record the Board finds that a 20 percent rating as of the July 14, 2017, VA examination, but no earlier, is warranted. Prior to the July 2017 VA examination the Veteran's at worst ankle limitation of motion was found to be dorsiflexion to 15 degrees and plantar flexion to 35 degrees. See November 2014 VA examination. Other examinations prior to July 2017 found the Veteran to have normal range of motion of his right ankle. See January 2018, February 2011, and January 2017 VA examinations. Thus, even taking into consideration the Veteran's statements regarding additional loss of range of motion due to flare-ups that would not be attributed to his right ankle gout, the Board does not find that the evidence supports a determination that the Veteran's right ankle limitation of motion would be considered marked. His documented at worst range of motion was only 5 degrees limited in dorsiflexion and 10 degrees limited in plantar flexion. Thus, a rating higher than 10 percent prior to July 14, 2017, is not warranted. In so finding, the Board has considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. However, as of his July 2017 VA examination, the Veteran's best right ankle range of motion was limited to dorsiflexion to 10 degrees and plantar flexion to 20 degrees. See July 2017 and February 2019 VA examinations. The reduction shows a marked change in the Veteran's right ankle motion as of his July 2017 VA examination, and thus, warrants a 20 percent rating as of July 14, 2017. This represents the maximum benefit allowed under DC 5217. Right Ankle Gout As stated above, DC 5017 provides that gout is rated under DC 5002. Under DC 5002 gout is rated 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, DC 5017, 5002. After review of the record, the Board finds that the Veteran's right ankle gout warrants a 20 percent rating. The Board did not find evidence that supported a determination that the Veteran's right ankle gout caused definite impairment of health, or that he had incapacitating episodes of right ankle gout 3 or more times per year. See VA examinations in January 2008, February 2011, January 2014, January 2017, July 2017, February 2019, and September 2020. In the retrospective examination opinion provided in November 2020, the examiner recounted that the Veteran reported 2-3 gout flares per year which caused him to have difficulty in bearing weight, lasting 2-3 days, with 10/10 severity bilaterally. A rating higher than 20 percent would require 3 or more incapacitating episodes per year for his right ankle. Based on the Veteran's own statements, the Board is unable to find that such criteria to warrant a 40 percent rating is met. In so finding, the Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.