Citation Nr: 21070585 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-26 228 DATE: November 24, 2021 ORDER Entitlement to an initial 60 percent disability rating, but no higher, for service-connected gout is granted. Entitlement to an initial 10 percent disability rating for service-connected shin splints for each knee is granted. Prior to January 14, 2020, entitlement to an initial 30 percent disability rating, but no higher, for service-connected bilateral plantar fasciitis with degenerative joint disease and heel spurs (hereafter referred to as a "bilateral foot disability") is granted. REMAND Entitlement to service connection for tinnitus is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's service-connected gout manifests no more than severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. 2. Each of the Veteran's lower extremity manifests shin splints. 3. Prior to January 14, 2020, the Veteran's service-connected bilateral foot disability manifests no more than severe pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 60 percent disability rating, but no higher, for service-connected gout are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5002, 5017. 2. The criteria for entitlement to an initial 10 percent disability rating for service-connected shin splints for each knee are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5262. 3. Prior to January 14, 2020, the criteria for entitlement to an initial 30 percent disability rating, but no higher, for service-connected bilateral foot disability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1996 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a January 2019 Decision, the Board remanded entitlement to: (1) service connection for tinnitus; and initial disability ratings greater than (2) 20 percent for gout, (3) 10 percent for the bilateral foot disability, and (4) 10 percent for bilateral shin splints. Remand was warranted to secure a new etiological opinion for tinnitus, the opportunity to obtain potential outstanding private treatment records, and for updated examinations for the increased rating claims. Between June 2019 and January 2020, all specified development was completed. In a May 2020 Rating Decision, the agency of original jurisdiction (AOJ) awarded the Veteran a 50 percent disability rating beginning January 14, 2020, for his service-connected bilateral foot disability. In a September 2020 Decision, the Board denied: (1) service connection for tinnitus; an increased rating greater than (2) 10 percent, prior to January 14, 2020, and greater than 50 percent thereafter for the bilateral foot disability; (3) 20 percent for gout; and (4) 10 percent for bilateral shin splints. The Veteran appealed portions of the September 2020 Decision to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a June 25, 2021, Joint Motion for Partial Remand (JMPR). The reasons for remanding each issue will be discussed in that respective issue's section. By a July 6, 2021, Order, the CAVC adopted the Parties' JMPR and vacated portions of the Board's September 2020 Decision, remanding these issues back for appellate consideration. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where 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. Fenderson v. West, 12 Vet. App. 119, 126 (1999). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Id. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). 1. Entitlement to an initial 60 percent disability rating, but no higher, for service-connected gout is granted. The Parties agree that the Board erred when it failed to discuss relevant evidence. Specifically, it neglected evidence from 2012 and 2013 that shows that the Veteran's medication was increased to help manage gout flares, which had been occurring at least once a month; and 2015 where the Veteran reported that he had to miss work due to a gout flare-up, causing him to seek treatment from urgent care for "'severe gout.'" JMPR at 45. The Parties reminded the Board that it may not consider the ameliorative effects of the Veteran's gout medication when assessing its severity. Id. at 5 (citing Jones v. Shinseki, 26 Vet. App. 56, 63 (2012)). During the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a. These changes take effect February 7, 2021, and cannot be applied prior to that date. Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or the new criteria. 85 Fed. Reg. 76,453, 76,469 (Nov. 30, 2020). Gout was and is rated under DC 5017. Before February 17, 2021, DC 5017 subsequently was rated under DC 5002 for rheumatoid arthritis. At that time, DC 5002 permitted a 100 percent rating for constitutional manifestations associated with active joint involvement, totally incapacitating. A 60 percent rating is less than the criteria for a 100 percent rating but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. A 40 percent evaluation requires symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. Beginning February 17, 2021, gout (still DC 5017) is rated under degenerative arthritis based on limitation of motion of affected parts. The September 2010 Rating Decision on appeal awarded service connection for the Veteran's gout; he was assigned a 20 percent rating effective September 1, 2009. He timely appealed seeking a higher rating. See Aug. 29, 2011, Notice of Disagreement (NOD). Private treatment records from February 2009 show pain and swelling in the left great toe, tingling in left wrist, and pain in the right wrist, all of which were due to gout. August 2009 entries show that the Veteran complained of left-foot pain due to gout. His right ankle was swollen for the past three days, but that was due to cellulitis. An August 2009 VA medical center (VAMC) entry noted right foot pain and irritation over the last few days due to gout; the Veteran had tenderness around the toes and medial foot. A January 2010 note states that the Veteran saw his private, primary care doctor on January 10, 2010, for a gout attack in the left ankle. He was given a steroidal shot and prescriptions for Indomethacin and Colchicine. He took those for three days, which resolved his swelling and redness. Private treatment records from JanuaryMarch of 2010 document pain and swelling in the Veteran's left foot, which occasionally was treated with steroidal shots. In a March 2010 VA examination for gout, the examiner noted that the Veteran suffers from gout in multiple joints, and the Veteran alleges that he is unemployable due to his gout. A January 2013 VAMC entry shows that the Veteran currently was experiencing a gout flare. In March, a prescription of Alopurinol was increased from 100 milligrams (mg) to 300mg and added 0.6mg of Colchicine. That note also indicated his most-recent gout flare was four days ago and affected his left elbow, left wrist, and both knees. A June 2013 note stated that the Veteran recently saw his private doctor, who started him on Medrol for gout flares. A December 2014 VAMC entry documented a gout attack in the Veteran's left ankle productive of pain but not swelling. A September 2015 private treatment note indicates that the Veteran has experiencing "multiple gout flares" since the age of thirty and that he is on 300mg of Alopurinol daily relatively recently and has had no gout flares in the last few months. An October 2015 entry indicates that he had a flare almost two weeks ago, which caused him to miss work and seek treatment at urgent care. The provider labeled the Veteran's gout as "severe." Additional private records show, in September and October 2015, mild pain in the left hand and right foot. There were documented flare-ups in September and December 2016, as well as some in 2017 (March, July, and September). A January 2020 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner confirmed the Veteran's long-standing gout, which affects his bilateral knees, feet, ankles, right wrist, and right elbow. The examiner also conducted separate examinations for those joints. Evaluating the record, the Board finds that an initial 60 percent disability rating for the Veteran's service-connected gout is warranted. As that criteria makes clear, the Veteran's gout must manifest weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. Here, the Board finds that the Veteran's gout satisfies the latter provision. Since the March 2013 VA examination, the Veteran has claimed an inability to work due to his gout. The record shows a history of multiple gout flares and attacks for many of the years that this appeal has been pending; although, some years there were not as many. The Veteran's own private doctor noted that the Veteran's history of gout has been "severe," and the January 2020 examiner confirmed that it affects the bilateral ankles, knees, feet, and right wrist and elbow. The records reflect that he has had to miss work and seek treatment such as steroidal injections. If there still were doubt regarding whether the Veteran's gout causes "severe incapacitating exacerbations," the Board is mindful of the Parties' instruction in the JMPR to give due consideration to Jones. In that regard, the Board cannot consider the ameliorative effects of the Veteran's gout medication in assigning a rating. See 26 Vet. App. at 63. The record is replete with numerous medications that the Veteran takes for his gout, and the Board finds that in their absence, it would produce considerably worse symptoms. Therefore, the Board finds that an initial 60 percent rating is appropriate. See 38 C.F.R. § 4.71a, DCs 5002, 5017. The record however does not reveal that the Veteran's gout causes "total[] incapacitat[ion]." Id., DC 5002. There is no evidence of any flare rendering the Veteran totally incapacitated. Thus, the Board finds that the 60 percent rating is more appropriate. The Board also has considered using DC 5017's new criteria in rating the Veteran beginning February 17, 2021, but that would result in no greater an award. The Board concedes that the Veteran's gout affects his bilateral knees, ankles, and feet, as well as his right wrist and elbow. The examinations provided for those joints show that, during flares, the Veteran experiences reduced ranges of motion; however, none of that reduced range of motion reaches a compensable level under the joints' respective DCs. Recall, however, that the amended criteria require gout to be rated under degenerative arthritis affecting range of motion for the associated joint. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 20407 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Thus, if the Board had not found that a 60 percent rating were warranted under the old criteria, then, beginning February 17, 2021, it would have been required to rate the Veteran under the new criteria, as that would require a separate, 10 percent disability rating for the Veteran's limited range of motion due to gout flares in his knees, ankles, feet, right elbow, and right wrist. Under VA law, eight, 10 percent ratings would give the Veteran a combined rating of 60 percent, so it is of no consequence under which criteria the Board uses. See 38 C.F.R. § 4.25. 2. Entitlement to an initial 10 percent disability rating for service-connected shin splints for each knee is granted. For the Veteran's knees, the Parties agree that the Board erred when it failed to consider whether separate ratings for each knee was warranted. JMPR at 5. Importantly, the Parties noted that, at the time of the Board's prior Decision, the Veteran's bilateral shin splints were rated by analogy under DC 5262, which did not discuss whether application was on a unilateral or bilateral basis. In comparison, the amended criteria for DC 5262, do distinguish unilateral and bilateral involvement in its ratings. Id. at 56. The Board also must consider the applicability of the bilateral factor under 38 C.F.R. § 4.26. Id. at 6. While the old rating criteria for DC 5262 indeed does not speak to unilateral or bilateral application, the Board acknowledges that the Veteran may receive more than one compensable rating for different conditions of the same knee. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. Given that the Veteran could receive separate ratings for, say, limitation of flexion, extension, and instability in each knee, giving him a total of six different knee ratings, the Board likewise finds that he would be able receive separate ratings for a condition listed under DC 5262. Thus, the Board will award the Veteran a separate 10 percent rating for each knee. Because of this award, it also finds that the Veteran is entitled to bilateral factor when calculating his combined rating. See 38 C.F.R. § 4.26. The Board will not apply the new criteria to the Veteran, as doing so would be more restrictive. To attain anything higher than a 10 percent rating, the Veteran's shin splints must be "unresponsive to surgery." But, as the January 2020 knee examination shows, the Veteran has not undergone surgery for his shin splints. Thus, under the new criteria, he would not be entitled to anything higher than a 10 percent rating. Therefore, the Board's award of a separate 10 percent rating for each knee is more beneficial to the Veteran. 3. Prior to January 14, 2020, entitlement to an initial 30 percent disability rating, but no higher, for service-connected bilateral foot disability is granted. As to his feet, the Parties agree that the Board erred to address evidence showing that the Veteran had pes planus prior to January 14, 2020, specifically evidence from August 2009 and April 2012. Under 38 C.F.R. § 4.71a, DC 5276, bilateral pes planus that is pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances is deserving a 50 percent disability rating. The same symptoms for unilateral pes planus warrant a 30 percent rating. If the pes planus is severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, then bilateral warrants 30 percent and unilateral warrants 20 percent. The new rating criteria now include a DC for plantar fasciitis5269. Under that DC, the highest rating is 30 percent. Because the Board is awarding a 30 percent rating under the Veteran's current DC5276, it need not discuss DC 5269 and its criteria. The September 2010 Rating Decision on appeal awarded service connection for the Veteran's bilateral foot disability; he was assigned a 10 percent rating effective September 1, 2009. He timely appealed seeking a higher rating. See NOD. The May 2020 Rating Decision assigned him a 50 percent disability rating effective January 14, 2020. The only part of the Board's September 2020 Decision that was not vacated was the portion denying the Veteran a rating greater than 50 percent beginning January 14, 2020. Thus, that issue currently is not for appellate consideration, so the Board will assess the period only prior to January 14, 2020. A December 2009 VAMC entry notes that the Veteran was given custom orthotics for his feat, which were satisfactory to him. The March 2010 VA examination noted that the Veteran experiences pain in his arches and that he uses orthotics with a good response. Rest and elevation partially relieve symptoms and applying heat and cold do not. April 2012 VAMC entries show that impression casts were made of the Veteran's feet for custom fit orthotics. A majority of the VAMC records discuss that the Veteran experiences pain in his feet and also relate that he receives injections in his feet as due to gout. Prior to January 14, 2020, the Board finds that the Veteran's bilateral foot disability was severe with objective evidence of marked deformity, warranting a 30 percent rating. The records indicate that, as early as 2009, the Veteran received custom orthotics for the deformity in his feet and that he had a good response to that treatment. A 50 percent rating requires a finding that the Veteran experiences various symptoms "not improved by orthopedic shoes or appliances," 38 C.F.R. § 4.71a, DC 5276, but the evidence prior to January 14, 2020, does not show that the Veteran's condition did not improve via the use of his custom orthotics. Quite the opposite, it reveals that he responded well to that treatment. Thus, the Board finds that, for this period, a 30 percent rating and no higher is appropriate. See id. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The Parties agree that the Board erred in denying this claim when it both found the Veteran competent to attest to things through his lay observation but also found that he did not have a diagnosis of tinnitus, relying on a January 2020 VA examination, and that that examination internally was inconsistent. JMPR at 23. The Parties agree that the Board must obtain a new, adequate opinion. Thus, to comply with the terms of the JMPR, the Board will remand this claim for the AOJ to obtain an adequate etiological opinion for the Veteran's tinnitus claim. 2. Entitlement to TDIU is remanded. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record in association with an increased rating, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for the increased rating on appeal. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (per curiam). Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373, 38889 (2019); Harper v. Wilkie, 30 Vet. App. 356, 35961 (2018). As noted above, the Veteran claimed at the March 2010 VA examination that his employment suffers from his gout, and there are additional medical records that confirm that the Veteran's gout has caused him to miss work or leave it early to seek treatment. Thus, the Board finds that the issue of TDIU has been raised in connection with the Veteran's initial increased rating claim. Furthermore, it notes that, on a July 13, 2011, VA Form 21-0820, the Veteran stated that he was claiming TDIU and that he submitted, among other things, a VA Form 21-8940 (formal application for TDIU). The claims file, however, does not indicate that any such form was received or that the AOJ ever adjudicated a claim for TDIU. Thus, because the Veteran's work history is unknown, and so that the AOJ can consider the grant of benefits awarded herein, the Board finds that this issue is remanded to the AOJ to adjudicate it in the first instance and to preserve the Veteran's right to "one review on appeal." 38 U.S.C. § 7104(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain an addendum to the January 2020 VA tinnitus opinion. The addendum shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's tinnitus occurred in, or is the result of, his period of active duty service? In answering this question, the examiner must address the Veteran's lay statements concerning the existence and etiology of his tinnitus. Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Send the Veteran the necessary paperwork for a complete application for TDIU. 4. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.