Citation Nr: 21006775 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-29 663 DATE: February 5, 2021 ORDER A rating in excess of 40 percent prior to March 9, 2020, for residuals of prostate cancer is denied. A rating in excess of 60 percent from March 9, 2020, for residuals of prostate cancer is denied. An initial rating in excess of 20 percent prior to March 9, 2020, for gout is denied. Entitlement to a rating excess of 40 percent from March 9, 2020, for gout is denied. FINDINGS OF FACT 1. Prior to March 9, 2020, the Veteran’s residuals of prostate cancer were manifested by voiding dysfunction which required the wearing of absorbent materials that must be changed no more than two to four times per day; and increased urinary frequency causing daytime voiding intervals of less than one hour; but not renal dysfunction or recurrence of active cancer. 2. From March 9, 2020, the Veteran's residuals of prostate cancer are manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed more than four times per day; but not renal dysfunction or recurrence of active prostate cancer. 3. Prior to March 9, 2020, the Veteran’s gout manifested as no more than several non-incapacitating exacerbations a year in a well-established diagnosis; but not incapacitating episodes occurring three or more times per year and without combinations of symptoms productive of definite impairment of health. 4. From March 9, 2020, the Veteran’s gout has been an active process manifested by incapacitating exacerbations occurring 3 or more times a year; but not severely incapacitating exacerbations occurring four or more times a year or a less number over prolonged periods; or weight loss and anemia productive of severe impairment of health. CONCLUSIONS OF LAW 1. Prior to March 9, 2020, the criteria for a disability rating in excess of 40 percent for the residuals of pro residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. From March 9, 2020, the criteria for a disability rating in excess of 60 percent for the residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.115a, 4.115b, DC 7528. 3. Prior to March 9, 2020, the criteria for an initial rating in excess of 20 percent for gout have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5017. 4. From March 9, 2020, the criteria for a rating in excess of 40 percent for gout have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to November 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board denied service connection for hypertension and a cervical spine disability and denied entitlement to an effective date earlier than October 28, 2013 for the grant of service connection for gout. In addition, the Board remanded the claims for entitlement to increased ratings for residuals of prostate cancer and gout in order to obtain VA examinations. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). In a July 2020 rating decision, the RO granted an increased rating for residuals of prostate cancer to 60 percent and also increased his rating for gout to 40 percent, both effective from March 9, 2020, the date of the VA examinations. As higher evaluations are available under the rating schedule, the claims remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). In addition, service connection was granted for scars of the periumbilical to lower abdomen region, as a residual of his prostate cancer, effective October 28, 2013. The Board notes that evidence has been added to the record since the last supplemental statement of the case (SSOC) was issued in July 2020. This evidence was not previously considered by the RO and includes a VA treatment record dated November 2020 and private medical records, including a laboratory report dated August 2020 showing the Veteran’s uric acid levels. Statutory provisions allow for an automatic waiver of initial RO review of post-substantive appeal evidence if submitted by the veteran for appeals filed after February 2, 2013. See 38 U.S.C. § 7105(e); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, the Veteran's substantive appeal was filed after February 2, 2013. Therefore, the automatic waiver provision applies. The Board also finds that the November 2020 VA treatment record associated with the claims file is not relevant to the increased rating claim decided herein as it indicates the Veteran has “mini” gout events since stopping Colchicine. This VA treatment record does not support the assignment of a higher rating in excess of 40 percent for gout based on the pertinent rating criteria that requires severely incapacitating exacerbations of gout. Accordingly, a remand for issuance of an additional SSOC to consider that additional evidence is not necessary, and the Board may proceed with its appellate review without prejudice. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800. 38 U.S.C. § 7107. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 1. Entitlement to a rating in excess of 40 percent for residuals of prostate cancer, prior to March 9, 2020. The Veteran contends that a higher rating is warranted for residuals of prostate cancer because he has stage III kidney disease which is demonstrative of a decrease in kidney function (renal dysfunction) caused by his prostate cancer. See Notice of Disagreement (NOD) (August 2014). Having carefully reviewed the evidence of record, the Board finds that for the reasons discussed below, the preponderance of the evidence is against an evaluation in excess of 40 percent for residuals of prostate cancer for the appeal period prior to March 9, 2020. The Board notes the Veteran has not had local recurrence or metastases of his prostate cancer at any time during the appeal period to warrant a 100 percent rating under 38 C.F.R. § 4.11b, DC 7528 (malignant neoplasms of the genitourinary system). The Board further notes the Veteran has been granted separate, noncompensable ratings for surgical scars and erectile dysfunction, in addition to special monthly compensation for loss of use of a creative organ, secondary to his prostate cancer residuals. The Veteran’s disability is currently evaluated under DC 7528, which directs that prostate cancer residuals are to be rated on the predominance of either renal dysfunction or voiding dysfunction. 38 C.F.R. § 4.115b, DC 7528. The schedular criteria for evaluating renal and voiding dysfunction are found at 38 C.F.R. § 4.115a. The Veteran's residuals of prostate cancer are currently assigned a 40 percent rating for the appeal period prior to March 9, 2020, pursuant to the voiding dysfunction criteria under 38 C.F.R. § 4.115a. As will be discussed below, the Veteran’s prostate cancer has not been found to have caused or aggravated his chronic kidney disease, nor does the competent medical evidence show that it has been linked to any other renal dysfunction. Accordingly, the Veteran’s residuals of prostate cancer are appropriately rated as a voiding dysfunction under the criteria of 38 C.F.R. § 4.115a. A rating based on the criteria for voiding dysfunction can be accomplished in one of three ways: continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence; urinary frequency, or; voiding obstruction. 38 C.F.R. § 4.115a. For urine leakage, a 40 percent rating is warranted for the required wearing of absorbent materials which must be changed between two and four times per day. A maximum, schedular 60 percent rating is warranted for the required wearing of absorbent materials which must be changed more than four times per day. For urinary frequency, a maximum, schedular 40 percent rating is warranted for daytime voiding intervals that are less than one hour, or; awakening to void five or more times per night. Finally, an evaluation under voiding obstruction is not applicable in this case as the Veteran is already assigned a 40 percent rating which is higher than the 30 percent maximum rating allowed for obstructed voiding. The Veteran’s private treatment records show that prior to the relevant period on appeal, he was diagnosed with prostate cancer and underwent a radical prostatectomy in September 2009. The Veteran was afforded a VA prostate examination in May 2014 and his prostate cancer was noted to be in remission. He was assessed with urine leakage and increased urinary frequency as residuals of prostate cancer. The Veteran reported daytime voiding intervals of less than one-hour, nighttime awakening to void two times, and the need for absorbent material which must be changed two to four times per day. There were no symptoms of obstructed voiding or recurrent urinary tract infections. The VA examiner noted that there was no renal dysfunction as a residual of his prostate cancer. The Board notes that neither the Veteran’s lay statements or his VA and non-VA medical records demonstrate that he met the criteria for a higher 60 percent rating prior to March 9, 2020. For instance, treatment records from Dr. Cobb, the Veteran’s urologist, show that in May 2014, he reported urinary incontinence aggravated by coughing, lifting heavy objects, sneezing and straining. The Veteran reported he was using two absorbent pads per day but now was not using any pads. In December 2015, he reported urinary frequency within two hours of the prior void and reported he woke up once per night to urinate. In August 2019, the Veteran reported daily urinary frequency within two hours of the prior void and nocturia between one and three times. As previously noted, the Veteran’s claim of entitlement to a higher rating for residuals of prostate cancer is largely based on his assertion that his various kidney disabilities are due to his prostate cancer. However, the Board finds the preponderance of the evidence shows the Veteran’s documented renal dysfunction is not caused or aggravated by his prostate cancer residuals. Here, the March 2020 VA prostate cancer examiner reviewed the Veteran’s claims file, including his extensive private treatment records provided by nephrologist, urologist and internist. The VA examiner acknowledged the Veteran’s congenital absence of one kidney and current laboratory findings confirming chronic kidney disease (CKD) Stage 3. She concluded that the Veteran’s nonservice-connected issues, including the congenital absence of one kidney, are more likely than not the etiology of his CKD. She further stated the Veteran’s recent urinary tract infections were likewise not related to his prostate cancer residuals. The examiner explained that the Veteran’s service-connected residuals of his prostate cancer are pathophysiologically separate from his CKD, his congenital solitary kidney and his recent urinary tract infections. Consequently, the residuals of prostate cancer had not caused or aggravated these renal issues. In support of her conclusion, she stated that having a solitary kidney is an established etiological risk factor for the development of CKD and cited medical literature indicating that “Children with a solitary kidney are at risk for long-term CKD which is thought to be due to glomerular hyperfiltration.” The VA examiner also indicated that her review of the medical records submitted by the Veteran’s private providers did not reveal that his prostate cancer or its successful treatment resulted in any renal complications (to include injury to or aggravation of the Veteran's congenital solitary kidney). Indeed, the Board notes the record is negative for any clinical findings or positive medical opinion linking the Veteran’s renal disabilities to his service-connected prostate cancer or residuals thereof. The Board finds this medical opinion highly probative because it is provided by a VA medical doctor who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is based on her review of the Veteran's claims file, analysis of pertinent data such as laboratory findings, and an interview and physical examination of the Veteran. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (The probative value of a medical opinion is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.). The VA examiner also provided a detailed rationale specific to the facts in this case, grounded in medical principles, and supported by medical literature. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez, 22 Vet. App. 295. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate his kidney conditions to his prostate cancer residuals, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Here, two VA medical examiners concluded the Veteran does not have renal dysfunction that is etiologically related to his residuals of prostate cancer. As such, the Veteran's nexus statements relating his kidney conditions to residuals of prostate cancer are not competent evidence. Therefore, a rating based on renal dysfunction is not warranted because the weight of the evidence is against finding that renal dysfunction is the predominant residual symptom of the Veteran's prostate cancer. Notably, the Veteran has not claimed that any symptoms or disabilities other than his renal disease are the basis for a higher rating. Moreover, the Board notes there are no alternative diagnostic codes that avail the Veteran of a higher rating in this case. Here, the lay and medical evidence of record demonstrates that the Veteran’s primary symptoms associated with his prostate cancer are contemplated by the rating criteria for voiding dysfunction. Further, there is no basis to stage the evaluation as the evidence shows no distinct period prior to March 9, 2020 where the Veteran’s symptoms associated with his voiding dysfunction would warrant a different evaluation. See Hart v. Mansfield, 21 Vet. App. 505 (2007). On balance, the weight of the evidence is against the claim for a rating in excess of 40 percent for residuals of prostate cancer prior to March 9, 2020. Accordingly, the claim is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 60 percent for residuals of prostate cancer from March 9, 2020. From March 9, 2020, the Veteran has been assigned a 60 percent rating for voiding dysfunction requiring the wearing of absorbent material which must be changed more than four times per day. 38 C.F.R. § 4.115a. Having carefully reviewed the evidence of record, the Board finds that for the reasons discussed below, the preponderance of the evidence is against an evaluation in excess of 60 percent for residuals of prostate cancer from March 9, 2020. A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. A 60 percent disability evaluation represents the maximum schedular evaluation for a voiding dysfunction. Id. As previously discussed, the competent and probative medical evidence of record does not demonstrate that the Veteran's residuals of prostate cancer have caused or aggravated any of his kidney disabilities, including chronic kidney disease. In addition, the Veteran has not been found to have active prostate cancer. The lay and medical evidence shows that from March 9, 2020, the date of his most recent VA examination, the Veteran’s residuals of prostate cancer have been manifested by urinary leakage requiring the wearing of absorbent materials that must be changed more than four times per day. The VA examination conducted in March 2020 reflects a diagnosis of residuals of adenocarcinoma of the prostate, status post radical prostatectomy that remains in remission. The Veteran reported urinary leakage that required the wearing of absorbent materials which must be changed more than four times per day. He also reported urinary frequency with daytime voiding intervals of less than one hour and nighttime awakening to void three to four times. The assigned 60 percent disability rating is the maximum schedular disability rating under DC 7528 based on voiding dysfunction. As the VA examiner determined the Veteran’s renal dysfunction was not related to his prostate cancer, a rating in excess of 60 percent from March 9, 2020, is not available. 38 C.F.R. § 4.115a. The Board has also considered the application of alterative diagnostic codes but finds the description and severity of the Veteran’s symptoms of urinary leakage and stress incontinence are sufficiently contemplated by the maximum schedular 60 percent rating criteria assigned for voiding dysfunction. Because the preponderance of the evidence is against the claim of entitlement to a rating in excess of 60 percent for residuals of prostate cancer from March 9, 2020, the doctrine of reasonable doubt is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim is denied. 3. Entitlement to an initial rating in excess of 20 percent for gout, prior March 9, 2020. The Veteran contends he is entitled to an increased rating for symptoms related to his gout. Having carefully reviewed the evidence of record, the Board finds that for the appeal period prior to March 9, 2020, the preponderance of the evidence is against an initial rating in excess of 20 percent for gout. The Veteran's disability is currently evaluated under 38 C.F.R. § 4.71a, DC 5017, which directs that gout be rated under 38 C.F.R. § 4.71a, DC 5002, pertaining to rheumatoid arthritis. Under DC 5002, rheumatoid arthritis is rated as an active process or based on chronic residuals. When rated as an active process, a 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned 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 rating is assigned for 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 4 or more times a year, or a lesser number over prolonged periods. A maximum 100 percent rating is provided when there are constitutional manifestations associated with active joint involvement and the condition is totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Under DC 5002, for chronic residuals such as limitation of motion or ankylosis, the disability is 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 those diagnostic codes, 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 Diagnostic Code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A note to DC 5002 states that ratings for an active process will not be combined with ratings for chronic residuals. Instead, the higher of the two ratings should be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5002. During the VA examination in May 2014, the Veteran was diagnosed as having gout and reported that he experienced three to five non-incapacitating exacerbations but denied any incapacitating exacerbations in the past year. The Veteran reported that is prescribed Allopurinal which he takes daily and Colchine when The Veteran indicated he had three non-incapacitating flare-ups/attacks per year, each lasting approximately two days. He reported the flare-ups affected his left ankle and his right great toe but less frequently. The Veteran described these non-incapacitating episodes as causing redness and pain in the right great toe and/or the left ankle but did not report that a gout flare-up caused limited motion of the joint. The VA examiner indicated the Veteran did not have weight loss or anemia due to gout. Upon examination of the right foot/toes and left ankle, the examiner noted that both exhibited a full range of motion and were without joint deformities, erythema, warmth to touch, or pain with palpation. The examiner also indicated the Veteran did not have gout exacerbations that were incapacitating nor did he have constitutional manifestations associated with active joint involvement which are totally incapacitating. The Veteran did not require an assistive device, such as a cane, to walk. The Veteran stated that his gout is virtually an everyday issue for him and affected his left ankle. He indicated that his uric acid tests were in the high range. See NOD (August 2014). The Veteran’s VA and non-VA medical records do not show that prior to March 9, 2020, the Veteran’s gout was manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year as warranted under the 40 percent criteria. The Board notes that a higher 40 percent rating is only warranted when the exacerbations are incapacitating. In this case, the competent, credible evidence of record does not reflect that, prior to the March 2020 VA examination, the Veteran had exacerbations of gout that were incapacitating in nature. For instance, a VA treatment record from January 2019, shows the Veteran reported gout flares up occurring four to seven times per year but they were not described as incapacitating. Furthermore, a review of systems during that visit revealed no myalgias, arthralgias, swollen joints, leg cramps or loss of muscle strength. Moreover, the Veteran did not have any significant weight gain or loss during the last year. Prior to March 2020, the Veteran’s non-VA medical records do not show that his gout caused impairment in health or incapacitating exacerbations occurring three or more times per year. Instead, the Veteran's gout has been characterized by no more than non-incapacitating exacerbations occurring up to several times per year. In addition, the VA examination report from May 2014 does not show any joint involvement or chronic residuals. While he was noted to have symptoms of pain, swelling and redness in the affected left ankle and/or right big toe during, he did not report during the VA examination that he experienced limited motion in his left ankle and/or right big toe during an exacerbation. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding in DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). However, an increased evaluation for the Veteran's gout is not warranted on the basis of functional loss due to pain in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. Although the VA examination indicates that the Veteran reported experiencing pain, redness and swelling in his right big toe and/or left ankle during flare-ups, such symptomatology is contemplated by the rating schedule. In addition, there is no additional loss of function or range of motion. As such, the Veteran did not demonstrate, and the evidence of record does not show that, even with consideration of pain and the functional impact of pain, the Veteran has symptomatology warranting a higher, 40 percent, evaluation. On balance, the weight of the evidence is against the claim for entitlement to an initial rating in excess of 20 percent for gout prior to March 9, 2020. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim is denied. 4. Entitlement to a rating in excess of 40 percent for gout from March 9, 2020. From March 9, 2020, the date of the most recent VA examination, the Veteran has been assigned a 40 percent evaluation for his gout. Based on the medical evidence of record, the Board finds that the Veteran's gout does not warrant a rating in excess of 40 percent from March 2020. The Board notes that VA examination findings do not show the Veteran’s gout causes weight loss and anemia productive of severe impairment of health nor does the Veteran have severely incapacitating exacerbations occurring four or more times a year or a less number over prolonged periods as required for a 60 percent evaluation. See VA non-degenerative arthritis examination (March 2020). During the VA examination conducted in March 2020, the Veteran described non-incapacitating as well as incapacitating attacks of gout. The Veteran explained that an exacerbation caused pain, swelling and warmth, but not limited motion of the affected joints. The Veteran reported four or more non-incapacitating exacerbations of his gout that typically lasted half a day to less than one day and did not limit his ability to move. The Veteran also reported incapacitating exacerbations of his gout that occurred between two to three times per year (described by the Veteran as “a couple times a year”) that lasted three or four days. He indicated that he usually had to stay off the involved extremity (i.e. left lower extremity) and limit walking. Lastly, he reported that in December 2019, he experienced a severely incapacitating gout attack that lasted between twelve and fourteen days, affected his left knee for the first time and he was unable to walk. The Veteran indicated that he took Cochicine during his gout attacks. He denied that he used an assistive device to walk. The Veteran was not found to have pain (with or without joint movement) attributable to gout. Moreover, he did not have limitation of joint movement, joint deformities, weight loss, or anemia attributable to gout. Significantly, the VA examination findings from March 2020 reflect the Veteran’s gout does not meet the criteria for a 60 percent rating. In this regard, the examiner determined gout was not manifested by weight loss and anemia productive of severe impairment of health, nor by severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. The VA examination findings further revealed the Veteran’s gout does not meet the criteria for a 100 percent rating. Here, the examiner determined gout was not manifested by constitutional manifestations associated with active joint involvement which are totally incapacitating. The Board further finds that the evidence does not show that the Veteran's gout, when considered as an active process, approximates the 60 percent criteria. The Board acknowledges the Veteran experienced a severely incapacitating exacerbation of his gout in December 2019. However, this one severely incapacitating flare-up that lasted a few weeks does not more closely approximate the 60 percent criteria with respect to fewer than four exacerbations over prolonged periods. The record also does not show the Veteran's gout has resulted in total incapacitation to warrant a 100 percent rating. In that regard, the Board acknowledges the Veteran’s statements during the examination that his flare-up in December 2019 was totally incapacitating; however, the record reflects the Veteran has no constitutional manifestations and no active joint involvement indicative of total incapacitation. The record in this case otherwise shows that the Veteran's gout results in incapacitating episodes, but that he has been able to take care of his activities of daily living and is encouraged to exercise. A June 2019 VA treatment record reflects the Veteran plays golf twice per week and walks his dog daily. The Board has also considered whether the Veteran is entitled to a higher rating when his gout is rated based on chronic residuals. The March 2020 examination report indicates that there are no objective findings of joint involvement due to gout. The Veteran’s VA and non-VA medical records do not show that the Veteran has reduced range of motion in his left ankle or right great toe. Therefore, consideration of a higher rating based on chronic residuals of gout affecting a joint is not applicable here as no such residuals have been found. On balance, the weight of the evidence is against the claim for entitlement to a rating in excess of 40 percent for gout after March 9, 2020. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim is denied. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.