Citation Nr: 21012870 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-46 825 DATE: March 5, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for service-connected bilateral gout of the ankles is denied. FINDING OF FACT The Veteran’s gout has not resulted in weight loss and anemia productive of severe impairment of health, nor in severely incapacitating exacerbations occurring 4 or more times per year or a lesser number over prolonged periods, nor in ankylosis of the ankles. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for bilateral gout of the ankles have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, 4.71a (2020), Diagnostic Codes 5002, 5017, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 2000. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in February 2014. The RO issued a statement of the case (SOC) in November 2015 and the Veteran timely filed his appeal to the Board in December 2015. While the Veteran initially requested a hearing in his appeal to the Board, the record reflects that this request was ultimately withdrawn. See December 2015 VA Form 9 at 3; cf. October 2020 VA Form 21-0820. Accordingly, no hearing before the undersigned Veterans Law Judge (VLJ) was conducted. Before addressing the merits of the Veteran’s claims, the Board briefly clarifies the scope of the issues on appeal. Following a proposal of May 2011, the Veteran’s disability rating for these conditions was reduced in a rating decision of July 2011. However, the record reflects that the Veteran’s disability rating was subsequently restored in a rating decision of June 2017. Accordingly, the issue of entitlement to restoration of a reduced disability rating is not before the Board at this time. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant 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 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In determining if a higher rating is warranted on this basis, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The record reflects that the Veteran is rated as 40 percent disabled for bilateral gout of the ankles from July 2000 under Diagnostic Code 5017. See June 2017 Rating Codesheet at 1. The Board notes that the rating criteria applicable to this condition have been revised during the pendency of the Veteran’s appeal. Prior to February 7, 2021, gout was rated using the criteria for rheumatoid arthritis. See 38 C.F.R. § 4.71a (2020), Diagnostic Code (DC) 5017 (providing that “diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts… except gout which will be rated under diagnostic code 5002”) (emphasis added); see also id. at DC 5002 (providing that a rating may be assigned based on the condition as an active process or as residuals resulting in limitation of motion, whichever is higher). From February 7, 2021, gout is instead rated using the criteria for degenerative arthritis. See 38 C.F.R. § 4.71a, DC 5017 (providing that “diagnostic codes 5013 through 5024 [are evaluated] as degenerative arthritis, based on limitation of motion of affected parts”). Because the Veteran’s claim predates the date this regulation was amended, and because the amendment contains no indicia of retroactivity, the Board must apply both versions of the regulation to the applicable portions of the Veteran’s claim. See Karnas v. Derwinski, 1 Vet. App. 308 (1991) (providing rule that Veteran will benefit from whichever version of regulation is more favorable); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (partially overruling Karnas and requiring that retroactive application of new regulation be based on express language to that effect); see also 85 FR 76453 (amendment discussing comments, establishing effective date, containing no indicia of retroactivity, and not claiming applicability only to post-dating claims). The Board has therefore considered both versions of the applicable rating criteria in reviewing the Veteran’s claim. However, the balance of the evidence of record supports the conclusion that an increased disability rating in excess of 40 percent is not warranted under either version. Under the previous version of the rating criteria, a disability rating in excess of 40 percent for gout as an active process is not assigned unless there is weight loss and anemia productive of severe impairment of health, or severely incapacitating exacerbations occurring 4 or more times per year or a lesser number over prolonged periods. See 38 C.F.R. § 4.71a (2020), DC 5002. The Veteran has undergone VA examinations on this issue in April 2011, April 2015, and July 2017. While these examinations noted the significant functional impairment caused by the Veteran’s bilateral ankle gout during flare-ups, they did not find the weight loss, anemia, or incapacitating exacerbations described above as required for a disability rating in excess of 40 percent. See April 2011 VA Examination Report at 9-10; see also id. at 49-50 (finding no incapacitating episodes); see also April 2015 VA Examination Report at 2; see also id. at 10 (finding no incapacitating exacerbations and no weight loss or anemia); see also July 2017 VA Examination Report (Active Process) at 5-6 (finding an average of one incapacitating exacerbation per year, but no weight loss or anemia). The Board notes that the April 2015 VA examiner did not provide estimates as to the additional functional impairment of the Veteran’s gout during flare-ups, asserting that such estimates would be speculative. See April 2015 VA Examination Report at 12. Generally, such a refusal may render a VA examination inadequate to support adjudication of a claim. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (providing that “VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from reliable sources, including the lay statements of veterans”). The Board has therefore considered whether to remand the Veteran’s case for a retrospective opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008) (finding retrospective medical opinion necessary where record contained no medical records between 1947 and 1997). However, the Board is also mindful of regulatory constraints on its ability to remand for further development, which “should not be undertaken when [the] evidence present is sufficient for this determination.” 38 C.F.R. § 3.304(c). Because the July 2017 VA examination report provided flare-up estimates, and because the April 2015 VA examination report’s findings as to the severity of the Veteran’s symptoms are otherwise consistent with the other evidence of record, the Board finds that remand for a retrospective medical opinion on this question is not necessary. See January 2018 VA Examination Report (Residuals) at 6. The Board notes that rating the Veteran’s bilateral ankle gout as residuals resulting in limitation of motion does not result in a higher disability rating in this case. Both versions of the applicable rating criteria provide that a disability rating in excess of 20 percent per ankle is not assigned unless there is ankylosis of that ankle. See 38 C.F.R. § 4.71a (2020), DC 5270, 5271; cf. 38 C.F.R. § 4.71a, DC 5270, 5271. None of the evidence of record supports the inference that the Veteran has ankylosis of either ankle. See April 2011 VA Examination Report at 54 (finding no joint ankylosis of either ankle); see also January 2018 VA Examination Report at 8 (same). Combined disability ratings of 20 percent for each ankle based on limitation of motion, including the additional bilateral factor provided for by applicable regulations, results in a disability rating of 40 percent. See 38 C.F.R. § 4.26 (providing for addition of bilateral factor); see also 38 C.F.R. § 4.25 (providing for the combination of ratings). In other words, the highest possible disability rating the Veteran could receive based on limitation of motion, given the evidence of record showing no ankylosis, would not exceed the 40 percent rating he has already been assigned. The Board therefore concludes that an increased disability rating for bilateral gout of the ankles in excess of 40 percent is not warranted. 38 C.F.R. § 4.71a (2020), 38 C.F.R. § 4.71a, DC 5017. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran’s claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.