Citation Nr: 21077411 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 11-11 774A DATE: December 29, 2021 ORDER With resolution of the doubt in favor of the Veteran, entitlement to an increased 40 percent disability evaluation for gout of the right hand prior to March 29, 2018 is granted. Evaluation gout right thumb currently 10 percent disabling is denied. Evaluation of gout right index finger currently 10 percent disabling is denied. Evaluation of gout right long finger currently 10 percent disabling is denied. Evaluation of gout right ring finger currently 0 percent disabling is denied. Evaluation gout right little finger currently evaluated as 0 percent disabling is denied. Entitlement to individual unemployability prior to March 29, 2018 is granted. FINDINGS OF FACT 1. Prior to March 29, 2018, the Veteran's gout of the right hand is characterized by incapacitating exacerbations three or more times per year. 2. From March 29, 2018, the preponderance of the evidence fails to demonstrate the Veteran's service-connected gout with chronic residuals of the right thumb or left thumb manifested by a gap of more than two inches between the thumb and fingers with the thumb attempting to oppose the fingers, or ankylosis. 3. From March 29, 2018, the preponderance of the evidence fails to demonstrate the Veteran's service-connected gout with chronic residuals of the right index finger, right long finger, right ring and little finger, left index finger, left long finger, or left ring and little finger were manifested by ankylosis. 4. Resolving any doubt, prior to March 29, 2018, the Veteran was unable to secure or follow substantially gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to March 29, 2018, the criteria for a 40 percent rating for gout of the right hand are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5017-5002. 2. From March 29, 2018, the criteria for a rating in excess of 10 percent for right thumb gout have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5228. 3. From March 29, 2018, the criteria for a rating in excess of 10 percent for right index finger gout have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5213. 4. From March 29, 2018, the criteria for a rating in excess of 10 percent for right long finger gout have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5229. 5. From March 29, 2018, the criteria for a compensable rating for right ring finger gout have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5230. 6. From March 29, 2018, the criteria for a compensable rating for right little finger gout have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5230. 7. Prior to March 29, 2018, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1977 to January 1978, from May 2002 to August 2004, and from September 2004 to March 2005. Procedural History In an October 2008 rating decision, the RO denied the Veteran's claim of service connection for gout of the right hand. In November 2010, the RO granted service connection for gout of the right hand and assigned a 10 percent disability evaluation. In December 2010, the RO granted an earlier effective date for the gout of the right hand and granted an increased rating to 20 percent. In March 2011, the Board remanded the Veteran's claim for an increased rating for gout of the right hand. In an October 2013 rating decision, the RO proposed to severe service connection for gout of the right hand. A January 2014 rating decision severed service connection for gout of the right hand. The Veteran appealed. In a July 2016 Board remand, the Board remanded the Veteran's claim for an increased rating for gout of the right hand prior to April 2014. The Board also remanded the issue of whether severance of service connection was proper. An October 2017 Board decision found that severance of service connection for right hand gout was improper and that restoration of service connection was proper. The Board also remanded the Veteran's claim for an increased rating for gout of the right hand. In a January 2018 rating decision, the RO restored service connection for gout and continued the previously assigned 20 percent rating. In a May 2021 rating decision, the RO granted service connection for gout of the right thumb, right index finger, right long finger, right ring finger, and right little finger and assigned ratings for each finger. From March 29, 2018, the Veteran's combine disability rating is 100 percent. Increased rating claims Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require "objective" evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). At the outset, the Board notes that the diagnostic criteria for rating musculoskeletal disorders under VA's Rating Schedule was amended effective February 7, 2021, including the criteria for rating gout. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5017). However, as the effective date of the amended criteria of February 2021 is after the rating period on appeal, the amended criteria do not apply to this appeal. Additionally, the rating criteria for limitation of motion of the individual digits, Diagnostic Codes 5228-5230 did not change. Diagnostic Code 5017 directs that gout was rated under the criteria for evaluating rheumatoid arthritis under Diagnostic Code 5002. Under Diagnostic Code 5002, a 20 percent evaluation is warranted where there was one or two exacerbations a year in a well-established diagnosis. A 40 percent evaluation is warranted for 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 evaluation applies where the evidence demonstrates symptomatology less than the criteria for 100 percent, 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 period. Finally, a 100 percent evaluation is warranted for constitutional manifestations associated with active joint involvement, totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Diagnostic Code 5002 further provides that chronic residuals, such as limitation of motion or ankylosis, are to be rated under the appropriate diagnostic codes for the specific joints involved. Id. A note to Diagnostic Code 5002 states that ratings for an active process will not be combined with ratings for chronic residuals. Instead, the higher of the two evaluations should be assigned. The Veteran was rated at 20 percent for gout of the right hand prior to March 29, 2018. Therefore, only the criteria in effect prior to the amendments are applicable. The Veteran was afforded a VA examination of his gout in June 2010. He reported diffuse joint aches but mild symptoms. The records showed the last attack of gout was in April 2007. There was no elevated uric acid level and no reports of hot, red, or swollen joints. The Veteran reported episodes of pain in his right hand and wrist and difficulty holding object for more than short periods of time. A physical examination showed tenderness to palpation of the dorsal aspect of the wrist, as well as the PIP joint of the right long finger. The wrist had 0 degrees to 60 degrees of dorsiflexion, 0 to 60 degrees of palmar flexion, 0 to 40 degrees of ulnar deviation, and 0 to 20 degrees of radial deviation. There was pain on motion at the end range of palmar flexion. The Veteran was able to perform repetitive use testing with no additional limitations. He had normal and full extension and flexion of the fingers of the right hand, was able to make a fist, and could oppose his thumb to the fingertips. He had normal grip strength. Regarding DeLuca provisions, the examiner stated that additional limitations due to flare ups cannot be determined without resorting to speculation. Functional limitations including extended periods of standing, walking, gripping, lifting, or carrying. In a March 2011 VA examination report, the Veteran reported flare ups of gout 2 to 3 times per month. A physical examination was conducted of his left hand, with no findings for the right. In March 2011, the Board remanded the claim for the issuance of a statement of the case for the claim of an increased rating for right hand gout. An April 2011 deferred rating decision noted that the November 2010 rating decision granted service connection for gout of the right hand and therefore, the issue was no longer on appeal. However, in August 2011, the AOJ issued a statement on the case on the issue of evaluation of gout, right hand, currently evaluated as 20 percent disabling. A supplemental statement of the case was issued in August 2013. The Veteran filed a substantive appeal in August 2013. The Veteran underwent a VA examination in October 2013. The Veteran reported gout attacks in his hands and wrists bilaterally, 1 to 3 times in a 2 week period. He reported constant hand pain in all fingers with movement, as well as difficulty gripping or grasping secondary to pain. He rated his constant pain at a 7 out of 10 and flare ups at 8 out of 10. A physical examination showed limitation of motion of all digits. There was no gap between the thumb pad and the fingers but there was a gap of less than 1 inch and painful motion at a gap of less than 1 inch for all fingers. There was no limitation of extension. The Veteran was able to perform repetitive use testing with no additional limitations. There was pain and swelling. Hand grip strength on the right was 4 out of 5. Regarding functional impact, the Veteran was unable to perform physical or sedentary tasks during his gout attacks. The Veteran submitted a private report in June 2014, in support of his claim for special monthly compensation. D.S., M.D. stated that the Veteran had reduced grip strength and drops items in his hands due to his gout. He also has restricted hand movement. In a February 2015 VA examination report, the Veteran reported continuous use of medication to treat his gout but denied weight loss and anemia. The Veteran endorsed pain and limited motion of the wrists, but did not indicate pain or limited motion of the hands and fingers. He endorsed non-incapacitating and incapacitating exacerbations of his knee and ankles. The Veteran appeared at a Board hearing in April 2016. (The Veterans Law Judge who held the hearing is no longer with the Board. In August 2017, the Veteran stated he did not want a new hearing.) The Veteran testified that his gout causes pain in his hands, making it hard for him to write and perform other activities of daily living. A VA examination was conducted in August 2016. The examiner noted a diagnosis of gout. The Veteran required continuous medication for treatment but did not have weight loss or anemia due to his condition. The examiner noted pain in his wrist but not his hand or fingers. The Veteran did not have limitation of joint movement due tohis gout. Exacerbating episodes were noted in his feet and ankles but not his hands or wrist. His gout was not manifested by symptoms combinations productive of definite impairment of health objectively supported by examination findings. Pursuant to the October 2017 Board remand directives, the Veteran was afforded a VA examination in January 2018. The examiner noted a diagnosis of gout that requires continuous use of medication. The Veteran had not lost weight and did not have anemia due to his gout. The examiner noted pain and limitation of motion in his right hand and fingers due to is gout, with no joint deformities. The Veteran had 4 or more exacerbations that were non-incapacitating. The examiner also noted 4 or more incapacitating exacerbations, involving pain, burning, swelling, and being unable to touch anything with the right hand, with a total duration of less than one week. The Veteran gout is not manifested by constitutional manifestations associated with active joint involvement which are totally incapacitating, weight loss or anemia productive of severe impairment of health, severely incapacitating exacerbations occurring 4 or more times over prolonged periods, or symptom combinations productive of definite impairment of health objectively supported by examination findings. Regarding functional impact, "the Veteran cannot perform any movements with the right hand while in crisis, and during quiet episodes, the movements occur with pain." In a February 2018 VA opinion, the examiner stated: The veteran has a chronically swollen right hand, as ascertained by the physical exam. He is right handed. There are uric acid levels which are elevated, and he was diagnosed with gout. He describes multiple gout attacks per month, which [make] his hand extremely painful and more swollen than usual. Any physical or sedentary work would require some hand manipulation, especially with the dominant hand. Considering the fact that the hand is chronically swollen, with pain, that he is right handed, it is at least as likely as not that he is unable to secure and maintain substantially gainful employment. The veteran has a chronically swollen right hand. He was diagnosed with gout and had elevated uric acid at repeated blood work. He cannot do any physical work which require his right hand, and also a sedentary job would necessitate his dominant hand for even simple tasks. The Veteran underwent VA examinations in March 2018 for his gout and his hand and fingers. Regarding his gout, the examiner noted gout and pain in both hands. He reported that over the last 18 months, pain has increased in hand, fingers, wrist, and left elbow. With decreased grip strength, the Veteran stated he is dropping everything that he picks up. The Veteran's gout requires continuous use of medication for treatment. The Veteran's gout has caused weight loss, leading to impairment of health. There was no anemia. The examiner noted pain and limitation of motion in the hands and fingers that affect his ability to perform daily activities. The Veteran had 4 or more non-incapacitating exacerbations per year. No incapacitating exacerbations were noted. His gout was not manifested by symptoms combinations productive of definite impairment of health objectively supported by examination findings. Radiologic images showed degenerative arthritis of the wrist; hands were within normal limits. Regarding the right hand and fingers VA examination, the Veteran reported increased pain, numbness, and decreased strength. The Veteran had flare-ups in which the pain and swelling are so bad he is unable to use his fingers for activities of daily living. Range of motion testing of the right hands showed maximum flexion and extension of the right index, long, ring, and little fingers to be MCP 50 degrees, PIP 50 degrees, and DIP 35 degrees. For the right thumb, he had maximum flexion and extension to be MCP 50 degrees and IP 35 degrees. There was a 3cm gap between the pad of the thumbs and fingers and a 2cm gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was evidence of pain on use. There was objective evidence of pain on passive range of motion test and when the joints were being used in non-weight bearing. The Veteran was unable to perform repetitive use testing due to fear of pain. The examiner stated that he was unable to say whether the Veteran's functional ability was additionally limited during a flare up or with repeated use over time as "there is no conceptual or empirical basis for making such a determination without directly observing function under those conditions." Muscle strength testing was 2 out of 5 with no atrophy. There was no ankylosis noted. Regarding occupational impact, the Veteran is retired but stated that he lost 2 to 4 weeks of work time in the prior 12 months and was unable to perform activities of daily living, including pulling on his boots, writing, typing, and eating. At an October 2020 VA examination for gout, the Veteran reported that his gout began with stiffness, soreness, aching, and pain and has spread from his hands to his whole body. He required continuous use of medication. He had not lost weight, nor did he have anemia due to his gout. He had pain in the sacroiliac joints, involving stiffness, pain, and swelling; however, the examiner noted pain and limitation of movement in the wrists, hips, knees, ankles, and feet but not in the hands and fingers. There were no joint deformities and no involvement of other systems. The Veteran had incapacitating episodes 4 or more times per year with a duration of less than 1 week over the prior 12 months. Diagnostic testing showed his uric acid was 5.4. The Veteran's gout is not manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings. At a January 2021 VA gout examination, the Veteran reported constant aching pain of his hands and finger and flare ups occurring 3 to 4 times per month, lasting 2 to 3 days. The flare ups cause swelling, throbbing pain, and burning pain. He requires continuous use of medication for treatment. He has not lost weight or developed anemia due to his gout. The examiner noted that joint involvement included his hands and fingers, among other joints. No other body system was involved. The Veteran has exacerbations that are not incapacitating 4 or more times per year, throbbing pain, swelling, and increased stiffness of multiple joints. The Veteran has incapacitating exacerbations 4 or more times per year, lasting more than a total of 6 weeks in the prior 12 months, in which he has limited use of the hands due to pain and swelling. The Veteran's gout is not manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings. Regarding functional impact, the VA examiner noted "difficulty with repetitive use of hands. Impaired gripping ability. Limited use of hands during gout flare ups." The Veteran was also afforded a hand and finger VA examination in January 2021. His symptoms were noted as above, including "daily aching pain and stiffness of hands and fingers; throbbing pain, swelling, and increased stiffness of hands and fingers; flare ups occurring at least weekly -reports that he takes colchicine 3-4 times weekly on average; pain most severe right hand and fingers; and tophi on hands and fingers." He reported flare ups that cause difficulty with repetitive use activities involving hands; impaired grip strength of the right hand; difficulty gripping heavy objects; grip easily fatigued; and impaired use of hands during severe gout flare ups. Range of motion testing for the bilateral hands was normal, with no gap between the pad of the thumb and the fingers or the finger and proximal transverse crease of the hand on maximal finger flexion. Pain was not noted with use of the hand on the right, but it was on the left and there was pain with finger flexion, opposition with thumbs, and finger extension. There was bilateral pain with non-weight bearing. On the right, there was objective evidence of localized moderate tenderness or pain to palpation of the hand but not on the left. The Veteran was able to perform repetitive use testing with no additional limitations. Although the Veteran was not examined immediately after repetitive use over time or during a flare up, the examiner opined that the Veteran's functional ability would be significantly limited in such a case; however, in a March 2021 addendum, he clarified that "flares do not significantly limit functional ability." Muscle strength testing was normal on the left and 4 out of 5 on the right, with no muscle atrophy. The May 2021 rating decision granted service connection for gout of the individual fingers of both hands, effective March 29, 2018. In June 2021, the Veteran filed a notice of disagreement with his ratings; however, the Board notes that the claims for an increased rating of the right hand and, by extension, the right fingers, was already on appeal. 1. Entitlement to an increased disability evaluation for gout of the right hand, initially rated as 20 percent disabling prior to March 29, 2018 Upon review of the record, the Board finds that a 40 percent rating for gout of the right hand prior to March 29, 2018 is warranted. For a 40 percent rating, the evidence must show symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. In the January 2018 VA examination report, the examiner noted that the Veteran had 4 or more incapacitating episodes. Additionally, although the records do not specifically use the terminology of "incapacitating episodes," the October 2013 VA examination report, the June 2014 private report, and the August 2016 hearing testimony showed that during a flare up, the Veteran was unable to perform tasks or grasp objects with his hand. The Board finds that this is akin to incapacitation of his hand. Therefore, with resolution of the doubt in favor of the Veteran, a 40 percent rating is granted. As the Veteran did not have consistent weight loss and anemia that are productive of severe impairment of health, or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods as the evidence does not show severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods, a higher, 60 percent, rating is not warranted. 2. Evaluation of gout right index finger currently 10 percent disabling 3. Evaluation of gout right long finger currently 10 percent disabling 4. Evaluation gout right thumb currently 10 percent disabling 5. Evaluation gout right little finger currently evaluated as 0 percent disabling 6. Evaluation of gout right ring finger currently 0 percent disabling To warrant an increased rating for gout of the right index finger, right long finger, right ring and little finger, the evidence must show ankylosis. To warrant an increased rating for gout of the right thumb, the evidence must show a gap of more than two inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers, or ankylosis. See 38 C.F.R. § 4.71a, DCs 5216-5230. The October 2013, March 2018, and January 2021 VA examinations of hand and fingers found no ankylosis in any finger. There is no evidence of record demonstrating ankylosis in any finger. During initial range of motion testing, there was no gap between the pad of the thumb and the fingers. The Board has considered the Veteran's lay statements regarding the severity of his gout. The Veteran is competent to provide evidence of his symptoms and the Board finds him credible. His statements have been considered in the VA examination reports and the Board finds that the ratings currently assigned compensate the Veteran for his pain and limited function, including during a flare up and after repetitive use over time. Accordingly, a rating in excess of 10 percent for right thumb gout, a rating in excess of 10 percent for right index finger gout, a rating in excess of 10 percent for right long finger gout, a rating in excess of 0 percent for ring or little finger gout, is not warranted. 7. Entitlement to individual unemployability prior to March 29, 2018 With resolution of the doubt in favor of the Veteran, a TDIU is granted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38C.F.R. §§ 3.341, 4.16, 4.19. Based on the Veteran's combined disability rating, he meets the schedular criteria for consideration of a TDIU from December 14, 2010 through March 29, 2018, with an 80 percent combined rating based on a 50 percent rating for obstructive sleep apnea and separate 10 to 20 percent ratings for gout in his hands, feet, hips, knees, wrists, and ankles. Reviewing the totality of the evidence shows that a TDIU us warranted. A March 2007 decision by the Social Security Administration found the Veteran to be unemployable due to his gout. Additionally, the January 2018 VA examiner opined that: It is at least as likely as not that he is unable to secure and maintain substantially gainful employment. The veteran has a chronically swollen right hand. He was diagnosed with gout and had elevated uric acid at repeated blood work. He cannot do any physical work which require his right hand, and also a sedentary job would necessitate his dominant hand for even simple tasks. Although the SSA decision is not dispositive to the claim for TDIU, the Veteran's reports of symptoms have been consistent. Resolving any doubt in the Veteran's favor, the Board finds that entitlement to TDIU is warranted. the appeal is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.