Citation Nr: 21028191 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-32 820 DATE: May 10, 2021 ORDER A non-initial rating of 20 percent for bilateral foot gout is granted, subject to the rules and regulations governing payment of VA monetary benefits. FINDING OF FACT Prior to June 6, 2019, the Veteran's bilateral foot gout was manifested by one to two exacerbations a year. CONCLUSION OF LAW Prior to June 6, 2019, the criteria for a rating of 20 percent for bilateral foot gout have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.17, 4.71a, Diagnostic Codes 5002, 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1974 to March 1981, April 1985 to April 1988, and March 2008 to January 2009. The Veteran testified before the undersigned Veterans Law Judge at a hearing in June 2018. A transcript of the hearing has been associated with the claims file. This issue, along with entitlement to a non-initial rating in excess of 40 percent for bilateral foot gout after June 6, 2019 and entitlement to a compensable rating for hypertension, were denied by the Board in a November 2019 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran, through his attorney, withdrew the claims of entitlement to a non-initial rating in excess of 40 percent for bilateral foot gout after June 6, 2019 and entitlement to a compensable rating for hypertension. Therefore, these issues were not addressed by the Court. The Court ordered a joint motion for partial remand (JMPR) for the issue of entitlement to a non-initial rating for a rating in excess of 10 percent for bilateral foot gout prior to June 6, 2019 and vacated the November 2019 Board decision to that issue. The issue has since returned to the Board for appellate review. Entitlement to a non-initial rating in excess of 10 percent prior to June 6, 2019 for bilateral foot gout is granted. The Veteran asserts that he is entitled to a rating in excess of 10 percent prior to June 6, 2019 for bilateral foot gout. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Diagnostic Code 5002 provides that rheumatoid (atrophic) arthritis will be rated based on either as an active process or on the basis of chronic residuals, and the higher rating will be assigned. Ratings for rheumatoid arthritis as an active process will not be combined with the residual ratings for limitation of motion or ankylosis. 38 C.F.R. § 4.71a. Under Diagnostic Code 5002, rheumatoid arthritis as an active process is to be rated 20 percent for one or two exacerbations a year in a well-established diagnosis; 40 percent for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year; 60 percent for symptoms that are less than criteria for 100 percent rating, but with weight loss and anemia, that are productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods; and a 100 percent rating for constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5002, chronic residuals such as limitation of motion or favorable or unfavorable ankylosis are to be rated under the appropriate diagnostic codes for the specific joints involved. Where the limitation of motion of the specific joint or joints involved is noncompensable (0 percent) under the 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Such ratings of chronic residuals under Diagnostic Code 5002 are to be combined, not added. 38 C.F.R. § 4.71a. With respect to disabilities of the feet, 38 C.F.R. § 4.71a, Diagnostic Code 5284 applies to other foot injuries. A 10 percent rating is assigned for moderate disability to the foot; a 20 percent rating is assigned for moderately severe disability to the foot; and a 30 percent rating is assigned for severe disability to the foot. A 40 percent rating is assigned for actual loss of use of the foot. The words "moderate," "moderately severe," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2018). In an August 2010 VA treatment record, the medical provider found that the Veteran had no reported episodes of gout recently. On the August 2011 VA foot examination, the examiner indicated the Veteran has diagnoses of gout and plantar fasciitis. The Veteran stated that his gout is treated with colchicine and allopurinol. On the June 2012 VA non-degenerative arthritis examination, the examiner indicated that the Veteran has a diagnosis of gout that required continuous use of medication, allopurinol and colchicine. The examiner indicated that the Veteran does not have anemia due to the diagnosed gout. The examiner also indicated that the Veteran had pain in the bilateral foot and toes attributable to gout. On examination, the examiner observed that the Veteran did not have any limitation of motion attributable to gout. The Veteran stated that the bilateral foot gout flares three to five times a year. The examiner also noted that the Veteran did not experience non-incapacitating or incapacitating exacerbations, constitutional manifestations, pertinent physical findings, or scars. The examiner did find that the Veteran's bilateral foot gout does impact his ability to work. The examiner explained that prolonged standing and walking cause bilateral foot pain. In a July 2013 private treatment letter, the medical provider stated that the Veteran's gout has been quite severe in the past and the Veteran would likely lose control of this condition if he discontinues his prescribed medication. In a December 2013 private treatment record, the Veteran complained of foot pain. The Veteran stated the pain began three weeks prior. He denied any trauma or injury to the foot. He stated that he is on his feet at work. He stated he works in boots there and stated he wears custom orthotics that he received in the military. In a May 2015 email correspondence, the Veteran notified his employer that he would not be reporting to work that day because of bilateral foot gout. The Veteran was unable to work for two days. The Veteran reported that he had difficulty walking unassisted and required use of a cane. At the July 2015 decision review officer hearing (DRO), the Veteran testified that his bilateral foot gout requires him to wear a brace on both feet. DRO Hearing Transcript ( DRO T.) at 4. He explained that the brace is rigid on the left and right ankle and provides support. Id. The Veteran stated that his bilateral foot gout has worsened and causes symptoms at times during the week, if not daily. DRO T. at 4-5. The Veteran stated he is prescribed medication for gout. DRO T. at 5. The Veteran stated that he had "one or more incidents" related to the gout and he sought treatment from a private treatment provider in May. DRO T. at 6. He stated that the private treatment provider prescribed the Veteran medication for pain. Id. At the June 2018 Board videoconference hearing, the Veteran testified that he is barely able to walk during flare-ups of gout. Hearing Transcript (T.) at 4. The Veteran testified that flare-ups occur about every two months to almost daily. T. at 9. The Veteran also stated there has been an increase in his medication for gout. Id. The Veteran stated that his employment requires him constantly be on his feet, which causes pain. T. at 5. As a result, the Veteran stated that he has missed days from work. T. at 6. Here, prior to June 6, 2019, the Veteran's private treatment records, VA treatment records, and VA examinations fail to establish limitation of motion or ankylosis of the Veteran's feet, and thus it is appropriate to rate the Veteran's bilateral foot gout under Diagnostic Codes 5002 or 5284. The records show that prior to June 6, 2019, the Veteran experienced symptoms amounting to one to two exacerbations in the prior year that lasted less than one week. This is supported by the June 2012 VA examination reflecting the Veteran's report of three to five flare-ups of gout per year, combined with that VA examiner's finding that the flare-ups did not amount to incapacitating or non-incapacitating episodes of gout; the May 2015 email correspondence to the Veteran's employer showing an incapacitating exacerbation for two days; and the June 2018 Board hearing testimony at which the Veteran reported flareups every two months to "almost daily." This warrants a 20 percent rating. The Board acknowledges that the Veteran's July 2013 private treatment provider classified the Veteran's bilateral foot gout to be severe. However, the Board finds this assessment to be less probative as the medical provider did not provide any description of the symptoms or an explanation of what classified the Veteran's bilateral foot gout as severe. Therefore, the Board will give this less weight as other treatment records and examinations do not corroborate this assessment. Prior to June 6, 2019, the Board finds that the Veteran's bilateral foot gout more nearly approximates the 20 percent rating criteria. In this regard, on the June 2012 VA non-degenerative arthritis examination the Veteran stated that the bilateral foot gout flares three to five times a year. However, even considering this statement, the VA examiner found at that time that the Veteran's bilateral foot gout did not cause incapacitating or non-incapacitating exacerbations. A May 2015 email correspondence showed the Veteran's bilateral foot gout caused two days of an incapacitating exacerbation. At the July 2015 DRO hearing the Veteran stated that he had "one or more incidents" related to the gout and he sought treatment from a private treatment provider in May. And at the June 2018 Board hearing, the Veteran testified that he has missed days from work due to the bilateral foot gout and the flare-ups occur every two months to almost daily. The Board finds that these symptoms are commensurate with one or two exacerbations a year in a well-established diagnosis. This evidence is most consistent with a 20 percent disability rating under Diagnostic Code 5002. The evidence of record prior to June 6, 2019 does not show that the Veteran experienced symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. Thus, a rating higher than the 20 percent assigned herein is not warranted prior to June 6, 2019. As a final matter, the Board finds that a higher rating under Diagnostic Code 5284 is not warranted as the medical evidence does not support a finding of a moderately severe or severe foot injury. In so finding, the Board notes first, as above, that the single notation of record describing the Veteran's bilateral foot gout as "severe" neither defines that term nor offers any evidentiary support for such a finding. As stated above, the Board affords this evidence little probative weight. The Board also finds that the evidence of record does not support a finding that the Veteran's bilateral foot gout was otherwise "moderate" or "severe" such to warrant a higher rating under Diagnostic Code 5284. Specifically, the Board finds that the evidence references only occasional flare-ups, with the June 2012 VA examiner specifically finding the Veteran to experience neither incapacitating nor non-incapacitating exacerbations of his bilateral foot gout. Given this evidence, combined with the Veteran's own statements from the period prior to June 6, 2019, indicating that his gout flared up at most five times per year, and in some instances only once per year, the Board concludes that the evidence simply does not support a finding that this level of symptomatology rises to the level of "moderate" or "severe" to warrant a higher rating under Diagnostic Coe 5284. Therefore, evaluation under Diagnostic Code 5002 provides the Veteran with the higher rating. Accordingly, the Board finds that a 20 percent rating, but no higher, is warranted prior to June 6, 2019 for bilateral foot gout. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.