Citation Nr: 21029117 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-42 772A DATE: May 12, 2021 ORDER Entitlement to a disability rating in excess of 20 percent service-connected gout prior to July 24, 2017 is denied. Entitlement to a disability rating of 60 percent, but no higher, for service-connected gout beginning July 24, 2017 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to July 24, 2017 the Veteran's diagnosed gout manifested with two incapacitating episodes per year due to pain. 2. Beginning July 24, 2017 the Veteran's diagnosed gout manifested with five severely incapacitating episodes per year due to pain which are debilitating to walking and moving. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for gout prior to July 24, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5017. 2. The criteria for entitlement to a disability rating of 60 percent, but no higher, for gout beginning July 24, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to February 1995. The Veteran's claim was previously before the Board in June 2020 and was denied. The Veteran and his representative timely appealed the denial to the Court of Appeals for Veterans' Claims (Court). In December 2020, the Court issued an order granting a Joint Motion for Partial Remand, vacating the June 2020 Board decision with respect to the issue noted above. During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the Veteran, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33, 422 (2000); Kuzuma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The rating period on appeal that is presently before the Board is dated prior to July 24, 2018. Therefore, the only applicable rating criteria for consideration are the pre-amendment criteria. Entitlement to an increased rating for gout prior to July 24, 2018. The Veteran is seeking an increased rating for his service-connected gout. The Veteran's disability is evaluated under 38 C.F.R. § 4.71a, DC 5017. Pursuant to the rating criteria associated with DC 5017, gout is rated under DC 5002, as for rheumatoid arthritis. For an active disease process, DC 5002 provides for assignment of a 10 percent rating if there is objective evidence of gout along with any limitation of motion of the joint. A 20 percent rating is provided for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is provided for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. A 60 percent rating is warranted for symptoms that are less than the criteria for a 100 percent rating, but with weight loss and anemia that are productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. Finally, a 100 percent rating is warranted for constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a, DC 5002. DC 5002 further provides that for chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, 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 the codes, a rating of 10 percent is for application for each such major joint or group of joints affected by limitation of motion, to be combined, not added under DC 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The Note to DC 5002 instructs that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankyloses. The higher rating should be assigned. Id. As stated above, the Court remanded the Veteran's claim with respect to the evaluation of the disability prior to July 24, 2018, which was rated 20 percent at the time. The Board's analysis is focused only on that period of the appeal. Turning to the evidence, in December 2013, the Veteran underwent a VA examination to evaluate the severity of his gout. The examiner noted that the Veteran experienced flare-ups twice per year that represented incapacitating episodes lasting one to two weeks. Pain was the only symptom of the gout identified. With respect to other symptoms and effects of the Veteran's gout, the examination clearly indicates that gout did not cause limitation of motion or ankylosis in any affected joint. On July 24, 2018, the Veteran underwent another VA examination which served as the basis for the original increase to 60 percent effective the date of the examination. The Veteran described experiencing severe incapacitating flare-up episodes approximately five times in the year preceding the examination that were debilitating with respect to walking and moving. The Veteran's contemporary and subsequent treatment records reflected the gout diagnosis but do not include any evidence of more severe symptoms of gout. Additionally, these records do not indicate that the increase from two to five incapacitating episodes occurred prior to the 12-month period preceding the July 2018 VA examination. The Board finds that, affording the Veteran the benefit of the doubt, the criteria for a 60 percent rating, but no higher, are met as of July 24, 2017. However, the preponderance of the evidence for the period on appeal prior to July 24, 2017 does not support a disability rating in excess of 20 percent. As stated above, the July 2018 VA examination clearly indicates that the Veteran met the criteria for a 60 percent disability rating during the 12-month period prior to the examination. He reported five incapacitating episodes that were severe in nature. There is no evidence of complete incapacitation due to constitutional manifestations associated with active joint involvement. The remaining evidence for the period prior to July 2018 demonstrates no evidence supporting incapacitating episodes of any severity occurring more than twice a year. Furthermore, there is no evidence of symptom combinations productive of definite impairment of health during that period. The December 2013 VA examination and contemporaneous treatment records indicate that the only symptom the Veteran experienced was pain. When not otherwise incapacitated by gout flare-up, there was no limitation to sitting, standing, or walking, and no impact on the Veteran's daily activities. The Board acknowledges the statements the Veteran made to dispute the 20 percent evaluation prior to July 24, 2018. Notably, in the February 2014 Notice of Disagreement, he contends the severity warrants a 40 percent rating. In his September 2018 VA Form 9, the Veteran stated his 60 percent rating should be in effect for the entire period on appeal as his gout has always been incapacitating. However, these statements provide no specific contentions to refute the Veteran's own characterizations of incapacitating episodes and symptoms as reported during his VA examinations. J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.