Citation Nr: 21013370 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-52 641 DATE: March 9, 2021 ORDER Entitlement to an increased rating of 60 percent for gout of right and left great toes is granted. FINDINGS OF FACT 1. The Veteran’s gout of the right and left great toes manifested with symptoms that more nearly approximate severely incapacitating exacerbations four or more times per year. 2. Total incapacitation from constitutional manifestations associated with active joint involvement due to gout of right and left great toes has not been demonstrated. CONCLUSION OF LAW The criteria for a disability rating of 60 percent, but no higher, for gout of right and left great toes, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5002, 5017. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Navy from June 1963 to November 1966 and Air Force from May 1968 to July 1972 and October 1972 to March 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota which, in relevant part, continued a 20 percent evaluation for service-connected gout of the right and left great toes. The Veteran submitted a notice of disagreement in January 2016. A statement of the case (SOC) was issued in September 2018. The Veteran perfected a timely substantive appeal via VA Form 9 in November 2018, electing to appeal only the evaluation of the service-connected gout of the right and left toes. The Veteran and his representative appeared at a virtual Board hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the proceeding is associated with the claims file. Additional evidence, including VA treatment records, was added to the claims file following the issuance of the September 2018 SOC. However, the Board finds that it is not relevant to the increased rating for gout claim, as the additional evidence relates primarily to dentistry and mental health. Thus, adjudication of the claim decided herein may proceed without prejudice to the Veteran. Increased Rating 1. Entitlement to an increased rating in excess of 20 percent for gout of right and left great toes. 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. 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. 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. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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 a veteran’s disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). During the pendency of the appeal, the rating criteria for evaluating gout under 38 C.F.R. § 4.17(a) was amended. 85 Fed. Reg. 76464 (Nov. 30, 2020). Effective February 7, 2021, gout is rated according to DC 5003, which provides that degenerative arthritis 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 (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate 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 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 allows for a 20 percent rating for degenerative arthritis with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. The Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); see also VAOPGCPREC 3-2000 and VAOPGCPREC 7-2003. The prior criteria provide the Veteran with a higher evaluation. Under the previous evaluation for gout 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 exacerbations occurring four or more times a year or a lesser number over prolonged periods. A 40 percent rating is assigned for symptom combinations productive of impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three 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 (2019). The Veteran has appealed the continuation of the 20 percent evaluation for service-connected gout of the right and left great toes. He contends that he has incapacitating exacerbations of gout occurring four or more times a year, warranting at least a 40 percent evaluation. The Veteran underwent VA examination in July 2015 in conjunction with the present claim. The examination report notes active gout requiring continuous use of medication. There was no weight loss or anemia attributable to gout. He reported pain in his toes with flare-ups limiting him to sitting and icing the painful areas. He reported difficulty putting on shoes and socks. No limitation of joint movement was attributable to the gout. The Veteran denied non-incapacitating exacerbations, but reported incapacitating exacerbations four or more times a year, with a total duration under a week during the past 12 months. The date of the most recent was May 2015, lasting for two days. The Veteran described severe pain and the inability to walk or stand more than a few steps without the use of a cane. He also reported the inability to put on socks or shoes due to pain. The examiner marked that the Veteran’s gout manifested as constitutional manifestations associated with active joint involvement which are totally incapacitating. The report stated that the Veteran did not have weight loss or 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. The Veteran provided testimony at a January 2021 Board hearing. He reported five or six gout exacerbations a year, varying in pain and duration. He described some as extremely painful resulting in immobility, with sharp pain in the joint sometimes accompanied by swelling and redness. He stated that he was unable to stand, put on socks, or even touch his feet to a bedsheet due to pain during severe episodes. His only movement during these periods was for essentials such as using the restroom. The Veteran reported daily medication, regardless of flare-ups or pain. The Board finds that the criteria are met for a 60 percent rating, but no higher. The evidence during the appeal period shows that the Veteran’s gout manifested as severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. The Board notes that the July 2015 VA examiner marked the box indicating constitutional manifestations associated with active joint involvement which are totally incapacitating. However, this is in conflict with the Veteran’s lay statements and VA treatment records which do not reflect total incapacitation outside of the periodic exacerbations. Indeed, the Veteran himself does not assert that he has been totally incapacitated due to his gout symptoms throughout the appeal. During the January 2021 Board hearing, his representative argued that a 60 percent rating was appropriate, and the Veteran described periods of incapacitation, but not total incapacitation due to his service-connected gout. Thus, the preponderance of the evidence is against a total rating for gout at any time during the period on appeal. Based on review of the medical and lay evidence, the Board finds the Veteran’s gout manifested as symptoms that more nearly approximate severely incapacitating exacerbations four or more times per year or a lesser number over prolonged periods; total incapacitation has not been demonstrated. In reaching this determination, the Board has considered the clinical findings as well as the Veteran’s credible statements about the nature and severity of his condition as reported to VA examiners and clinicians, and in testimony in support of his appeal. Therefore, resolving all doubt in the Veteran’s favor, a 60 percent schedular rating is granted for service-connected gout of the right and left great toes. The Board has considered whether any other DCs related to disabilities of the joints would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. The Board also finds that consideration for an extraschedular evaluation is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Director of Compensation Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to service-connected gout of the right and left great toes, including pain and other symptoms impacting his activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. The Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See, e.g., Thun, 22 Vet. App. at 111. The Veteran has not raised any other issues with respect to the increased rating claim for gout of the right and left great toes, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jamison, E. 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.