Citation Nr: 22011908 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-27 833 DATE: March 2, 2022 ORDER An initial rating of 10 percent, but no higher, for right toe gout is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT For the entire appeal period, the Veteran's right toe gout most nearly approximates a moderate foot injury, manifested by pain, tenderness, and swelling during flare-ups that result in difficulty with prolonged standing and walking, without incapacitating or non-incapacitating exacerbations, symptom combinations productive of definite or severe impairment of health, or manifestations that more nearly approximate a moderately severe or severe foot injury. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, for right toe gout have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5017-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1992 to August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2019 and July 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to an initial compensable rating prior to February 7, 2021, and in excess of 10 percent thereafter for right toe gout. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § § § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran's right toe gout has been assigned a noncompensable rating as of September 1, 2012, the date of service connection, pursuant to DC 5017 and a 10 percent rating as of February 7, 2021, the date of a regulatory change, pursuant to 5017-5284. 38 C.F.R. § 4.71a. In this regard, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria as of February 7, 2021, applying the criteria that is more favorable to him. In this regard, prior to the regulatory change on February 7, 2021, gout was rated under DC 5017, which provides that such will be rated under DC 5002. DC 5002 pertains to rheumatoid arthritis and provides that a 20 percent rating is warranted when there is an active process with one or two exacerbations a year in a well-established diagnosis. A 40 percent evaluation is warranted when there is an active process with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent rating is provided where there is an active process of a severity less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods. A 100 percent rating is warranted for constitutional manifestations associated with active joint involvement that are totally incapacitating. DC 5002 further provides that residuals, such as limitation of motion or ankylosis, favorable or unfavorable, are rated under the appropriate DC for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the DC, 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 DC 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A Note to such DC provides that the ratings for active process will not be combined with the residual ratings for limitation of motion or ankylosis; rather, the higher rating will be assigned. As of February 7, 2021, while gout continues to be rated under DC 5017; however, such provides that the disease will be evaluated as degenerative arthritis based on limitation of motion of affected parts. In this regard, DC 5003 pertains to degenerative arthritis, other than post-traumatic, and provides that such disease established by X-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. DC 5003 further states that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, 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 DC 5003. In the absence of limitation of motion, DC 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under DC 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, multiple involvement of the interphalangeal, metatarsal, and tarsal bones of the lower extremities are considered a group of minor joints. 38 C.F.R. § 4.45. Hyphenated DCs are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In the instant case, beginning February 7, 2021, the Veteran's right toe gout is rated under 5017-5284. DC 5284 pertains to other foot injuries and provides that a moderate foot injury is rated as 10 percent disabling, a moderately severe foot injury is rated as 20 percent disabling, and a severe foot injury is rated as 30 percent disabling. When there is actual loss of use of the foot, a 40 percent rating is assigned. The terms moderate, moderately severe, and severe are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, an October 2012 VA examination reflects a diagnosis of gout as of 2010 with a history of two episodes manifested by mild swelling and pain in the right great toe. The examiner indicated that the Veteran's right foot/toes were the only joints involved. However, he denied the continuous use of medication, weight loss, and anemia, and there was no limitation of joint movement or deformities. The examiner observed that the Veteran did not have incapacitating or non-incapacitating exacerbations of his gout, there was no functional impairment associated with such disability, and his uric acid was normal on laboratory testing. A June 2014 VA treatment record reflects the Veteran's report of bilateral foot pain, worse on the left, that had been present since March and caused problems with walking a long time over one hour. The examiner noted a history of gouty arthritis and hallux limitus bilaterally, but the assessment was midtarsal joint degenerative joint disease with boney block equinus on the right and gastrocnemius equinus bilaterally. In October 2014, the Veteran received approval under the Family Medical Leave Act (FMLA) for his gout. At an unrelated February 2015 VA examination, the Veteran reported a constant aching pain in the right great toe metatarsophalangeal (MTP) joint with intermittent swelling, and, at an unrelated April 2015 VA examination, bilateral gout was diagnosed and, it was noted that he had interference with standing. In an October 2017 VA treatment record, it was noted that the Veteran's gout was stable. In a March 2018 private treatment record, the Veteran presented with possible gout and symptoms of pain and swelling. He reported having previous gouty arthritis attacks involving the right and left metatarsophalangeal joints. At the October 2018 Board hearing, the Veteran reported that he has had severe swelling in his feet because of gout, which was treated with medication and steroid shots. He stated that he has had flare-ups where it hurts to touch or put pressure on the right great toe, and results in difficulty walking and prohibits physical activity. The Veteran estimated that he has a flare-up two or three times a year, which last two or three days and occasionally resulted in missing work. In this regard, he indicated that he worked as a corrections officer, which required him to be on his feet frequently, and, when his gout flared-up, he would need to leave work, which had occurred on four or five occasions in the past year. The Veteran noted that he received a FMLA leave grant in 2014 for one year, and missed about 10 days of work that year. In April 2019, the Veteran received approval under the FMLA for his gout, cervical spine, and sleep apnea. At a January 2020 VA non-degenerative arthritis examination, the Veteran reported pain, swelling, and tenderness in the right great toe during flare-ups and indicated that his current treatment included medication. The examiner indicated that the Veteran's right foot/toes were the only joints involved. While did not have weight loss, anemia, or joint deformity due to his gout, it was noted that such resulted in limitation of joint movement manifested by difficulty with prolonged standing and walking during flare-ups. The examiner observed that the Veteran did not have incapacitating or non-incapacitating exacerbations of his gout, or symptom combinations productive of definite impairment of health. His uric acid was normal on laboratory testing, but the examiner indicated that his gout resulted in functional impairment manifested by foot pain and tenderness with prolonged standing and walking during gout flare-ups. At a January 2020 VA foot examination, the Veteran described moderate to severe flare-ups of gout of the right foot that occurred four to five times a year that lasted 12 to 24 hours. He had difficulty with prolonged standing or walking during flare-ups. Upon examination, the examiner classified the Veteran's gout of the right foot as moderate in severity, which chronically compromised weight-bearing. There was pain in the right foot on examination, to include on active and passive range of motion, movement, weight-bearing, and nonweight-bearing. Additionally, it was noted that the Veteran experienced pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time, which was described as foot pain and tenderness with prolonged standing and walking during flare-ups. In a related opinion, the January 2020 VA examiner opined that the Veteran's right great toe gout was mild in frequency with moderate pain during flare-ups that lasted around 3 days and resulted in difficulty with prolonged standing and walking during flare-ups; however, there were no incapacitating episodes. The examiner further stated that there were no sedentary limitations to the Veteran's right toe gout, and he could perform lifting, carrying, pushing, pulling, bending, twisting, kneeling, squatting, standing, sitting, climbing, driving, and/or walking, unless he was experiencing gout flare-ups, which occurred four to five times a year and last 12 to 24 hours. She further stated that the Veteran may be required to change positions every 30-45 minutes in the event of a gout flare. In a June 2020 VA treatment record, the Veteran reported no recent flare-ups of gout, as he had been taking his medication and watching his diet. Based on the foregoing, the Board resolves all doubt in favor of the Veteran and finds that an initial 10 percent rating, but no higher, is warranted for his right toe gout for the entire appeal period. In this regard, the Board finds that such disability most nearly approximates a moderate foot injury, manifested by pain, tenderness, and swelling during flare-ups that result in difficulty with prolonged standing and walking, without incapacitating or non-incapacitating exacerbations, symptom combinations productive of definite or severe impairment of health, or manifestations that more nearly approximate a moderately severe or severe foot injury. In regard to the rating criteria in effect prior to February 7, 2021, the Board observes that, as the Veteran's gout does not result in incapacitating or non-incapacitating exacerbations or symptom combinations productive of definite or severe impairment of health, a rating pertaining to gout as an active process under DC 5002 is not warranted. Rather, such must be rated on residuals, such as limitation of motion or ankylosis, favorable or unfavorable, which are rated under the appropriate DC for the specific joints involved. In this regard, while the Veteran's right toe does not result in limitation of motion, the evidence shows that such is manifested by pain, tenderness, and swelling during flare-ups that result in difficulty with prolonged standing and walking throughout the entire appeal period. As indicated previously, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. 38 C.F.R. § 4.59; Burton, supra; Southall-Norman, supra. Thus, based on the Veteran's symptomatology and resulting functional impairment associated with his right toe gout, the Board finds that he is entitled to the minimum compensable rating based on residuals under DC 5284, which contemplates a moderate foot injury. However, at no point during the appeal period is rating in excess of 10 percent warranted under DC 5284 as the evidence does not show that the Veteran's right toe gout more nearly approximates a moderately severe or severe foot injury. In this regard, while he has pain, tenderness, and swelling during flare-ups that result in difficulty with prolonged standing and walking, the record shows that such flare-ups occur only 4 to 5 times a year, lasting no more than 3 days. Moreover, upon consideration of the totality of the Veteran's disability, the January 2020 VA examiner found that such was mild in frequency and resulted in no more than a moderate disability. In this regard, she noted that such disability did not result in any sedentary limitations and the Veteran was able to perform lifting, carrying, pushing, pulling, bending, twisting, kneeling, squatting, standing, sitting, climbing, driving, and/or walking when his gout was not flaring up. In light of such characterization of his disability by a competent medical professional, which is further supported by the Veteran's treatment records and Board hearing testimony, the Board finds his right toe results in no more than a moderate foot injury. Thus, an initial rating in excess of 10 percent for such disability is not warranted. In reaching the foregoing conclusion, the Board acknowledges the Veteran's belief that his right toe gout is more severe than as reflected by the currently assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right toe gout; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, which resulted in the award of an initial 10 percent rating for right toe gout for the entire appeal period. However, insofar as the Board has denied a higher rating for such disability, the weight of the probative evidence is against such aspect of the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in such regard and his initial rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.