Citation Nr: 21008976 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-33 938 DATE: February 18, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to a 40 percent rating, but no higher, for gout prior to August 12, 2020 is granted. Entitlement to a rating in excess of 40 percent for gout since August 12, 2020 is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran has sleep apnea that is related to his service-connected disabilities. 2. During the appeal period, gout has been manifested by symptom combinations productive of severe impairment of health objectively supported by examination findings. The evidence does not show weight loss, anemia, severe incapacitating exacerbations more than 4 times a year, or constitutional manifestations associated with active joint involvement, totally incapacitating. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea secondary to service-connected disabilities have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 2. Prior to August 12, 2020, the criteria for a 40 percent disability rating, but no higher, for gout are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5002. 3. The criteria for a rating in excess of 40 percent for gout since August 12, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5002. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1986 to December 2000. In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. The Board previously remanded this matter in May 2020. 1. Entitlement to service connection for sleep apnea The Veteran contends that he had sleep apnea symptoms in service. Alternatively, he contends that sleep apnea is related to service-connected gout through the intermediate step of obesity. At the hearing, the Veteran testified that he had snoring and interrupted breathing when he was in service. He testified that he used to teach martial arts but had to stop teaching in 2007 because of his gout attacks. After he stopped teaching, he gained weight. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (a). The Court has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). VA's General Counsel has held that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). In order to meet the criteria for service connection on this basis, three elements must be established: (1) the service-connected disease or injury must have caused the veteran to become obese; (2) the obesity as a result of the service-connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disease or injury. VAOPGCPREC 1-2017 (Jan. 6, 2017); see also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). Service treatment records do not reflect treatment of sleep apnea. At the hearing, the Veteran testified that he had sleep problems in service. He testified that he was told that he would stop breathing when he was asleep. The Veteran is competent to report the symptoms that he experienced in service. The Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evidence includes several lay statements about the Veteran’s sleep apnea. A statement from the Veteran’s mother indicated that she noticed his snoring when he came back from deployment in the Navy in 1989. A lay statement from D.L. noted that the Veteran lived with her from 1987 to 1991 and she noticed his snoring. Lay witnesses are competent to report that which they have observed with their own senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Private treatment records show that the Veteran was diagnosed with sleep apnea on a sleep study in January 2008. The Veteran had a VA examination in August 2020. The examination noted that the Veteran was diagnosed with obstructive sleep apnea (OSA) on a sleep study in 2008. The examiner opined that neither gout nor the gout medication predisposes to obesity. The examiner noted that the Veteran reported that he was very active with running and racquetball when not having flares of toe pain. The examiner opined that it is true that OSA is related to the Veteran’s weight gain since leaving the service, but this is caused by factors other than gout. The examiner concluded that there is no credible evidence that the weight gain has served as a bridge between the Veteran’s gout and OSA. The VA examiner opined that the Veteran’s sleep apnea is caused by obesity. However, the examiner found that service-connected gout did not contribute to his obesity. The competent medical evidence of record does not relate his obstructive sleep apnea directly to service. The Board has considered the Veteran’s statements about his symptoms and the lay statements about symptoms that were observed by service members and his friends. Those statements are competent and credible. However, even though he had snoring and interrupted breathing in service, the evidence does not show that his sleep apnea had its onset in service or was related to his in-service symptoms. The most probative evidence indicates that the onset of sleep apnea was after service in approximately 2008. The evidence relates his sleep apnea to weight gain. The Veteran has provided competent and credible testimony about a change in his activity level due to gout and subsequent weight gain. Considering the frequency of his flare-ups, his testimony about his reduced activity is found to be credible. The Board notes that there are numerous medical records indicating that the Veteran reported symptoms such as stiffness of his toes and joints related to gout. Notably, his August 2020 examination of his joints showed that he has flare-ups of his feet, with minor flare-ups every other week. The Board finds the medical evidence documenting the severity of the service-connected gout, along with the Veteran's testimony, are sufficient to place in equipoise the question of whether the Veteran's current sleep apnea is etiologically related to his service-connected gout with obesity as an intermediate step. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for sleep apnea have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an increased rating for gout Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits as well as the entire history of his disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Effective February 7, 2021, gout is rated according to DC 5003. Diagnostic Code (DC) 5003 provides that arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. Unless there is no indication that the revised criteria are intended to have retroactive effect, VA has a duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new diagnostic codes, and to consider the revised criteria for the period beginning on the effective date of the new provisions. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); see also VAOPGCPREC 3-2000 (2000) and 7-2003 (2003). The record does not include any evidence for the period since the effective date of the revision. Therefore, the revised criteria will not be considered. Gout is currently rated under DC 5002. A 100 percent rating is assigned with constitutional manifestations associated with active joint involvement, totally incapacitating. A 60 percent rating is assigned with less than the criteria for 100 percent but with weight loss and anemia productive of severe impairment of health or severely incapacitating. A 40 percent rating is assigned for symptom combinations productive of impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 times or more a year. A 20 percent rating is assigned for one of two exacerbations a year in a well-established diagnosis. 38 C.F.R. § 4.71a, DC 5002. A November 2015 rating decision granted service connection for gout and assigned a 20 percent rating from June 29, 2015, the date that an intent to file was received. The Veteran has appealed the initial rating for gout. He contends that he has incapacitating exacerbations of gout occurring 4 or more times a year. The Veteran had a VA examination in October 2015. He reported that he had weekly gout attacks. There was no weight loss or anemia attributable to gout. He had periodic flare-ups of pain involving the right elbow, knees, right ankle, right foot, and right toes. He did not have involvement of any systems, other than joints, attributable to arthritis. The examination noted that the Veteran had four or more non-incapacitating exacerbations of gout per year. He had two incapacitating exacerbations per year. The incapacitating exacerbations caused severe pain and difficulty walking. The Veteran did not have totally incapacitating constitutional manifestations associated with active joint involvement, weight loss, or anemia productive of severe impairment of health. He did not have arthritis and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or lesser number over prolonged periods. His gout was not manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings. A January 2016 letter from a private physician stated that the Veteran had been plagued by frequent attacks of gout in the past several years that are often disabling. He had about two episodes a month. A May 2016 VA treatment record noted that the Veteran reported non-incapacitating flares of gout, more than four times a year and sometimes every two weeks. A March 2020 private treatment record noted that the Veteran reported that he had weekly attacks when his gout was bad. A June 2020 record from a private physician noted that the Veteran had multiple gout attacks which led to urgent care. His flare-ups had been treated unsuccessfully with suppressive therapy. A July 2020 private record noted recurrent erosive gout, which was flaring and uncontrolled. It was noted that the Veteran’s gout was flaring in his left ankle. The Veteran had a VA examination in August 2020. The examination noted flare-ups of gout. The examination noted that there were serious attacks about six times a year, lasting 1 to 3 days. In a September 2020 rating decision, the RO assigned a 40 percent rating for gout from August 12, 2020. The rating was based on symptoms productive of severe impairment of health objectively supported by incapacitating exacerbations occurring three or more times a year. The Board finds that the criteria for a 40 percent rating were met for the entire rating period from June 29, 2015. The evidence during the appeal period shows that gout has been manifested by symptom combinations productive of severe impairment of health and supported by examination findings. The October 2015 VA examination noted that the health effects of gout included severe pain and difficulty walking. Significantly, the January 2016 letter from a private physician described the gout attacks were frequent and disabling. The October 2015 examination and January 2016 physician statement support a finding of symptom combinations productive of severe impairment of health. The criteria for a 60 percent rating are not met at any point during the appeal, as the evidence does not show that gout has caused weight loss or anemia. For these reasons, a 40 percent rating is granted for gout from June 29, 2015. A rating in excess of 40 percent for gout is denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.