Citation Nr: 22018223 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-33 938 DATE: March 28, 2022 ORDER Entitlement to a 60 percent disability rating, though no higher, prior to August 12, 2020, and from August 12, 2020, for gout is granted. FINDING OF FACT For the periods prior to August 12, 2020, and from August 12, 2020, the Veteran's gout has been productive of severely incapacitating exacerbations occurring four or more times a year. CONCLUSION OF LAW The criteria for a 60 percent disability rating, though no higher, prior to August 12, 2020, and from August 12, 2020, for gout have been met. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5002, 5017. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to December 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board in February 2020. A transcript of that hearing has been associated with the claims file. The Board remanded the appeal for further development in May 2020. A February 2021 Board decision, in part, awarded a 40 percent disability rating for gout prior to August 12, 2020, and denied a disability rating in excess of 40 percent for gout both prior to and from August 12, 2020. The Veteran appealed the denial of higher disability ratings for gout to the United States Court of Appeal for Veterans Claims (Court). By a November 2021 Order, the Court vacated and remanded this matter to the Board pursuant to the terms of a November 2021 Joint Motion for Partial Remand. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e., "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Gout During the pendency of the appeal, 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 from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran's gout is currently rated under Diagnostic Code 5017. As noted above, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. Under the new rating criteria, gout is to be rated as degenerative arthritis based on limitation of motion of the affected parts (joints). Under the old rating criteria, gout was to be rated under DC 5002, for rheumatoid arthritis based on incapacitating exacerbations of the disease. As the old criteria provides for the higher rating of 60 percent, the criteria more favorable to the Veteran will be applied. Pursuant to the provisions of Diagnostic Code 5002, a 60 percent disability evaluation is warranted when there is less symptomatology than the criteria for a 100 percent evaluation 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 maximum 100 percent rating is assigned when there is evidence of an active process with constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Codes 5017, 5002. Although Diagnostic Code 5002 does not define what constitutes an "incapacitating exacerbation," the term is defined elsewhere in the Rating Schedule, including within the same chapter regarding evaluating disability of the musculoskeletal system, specifically intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. Id. For the periods prior to August 12, 2020, and from August 12, 2020, the probative medical evidence of record, including the private and VA treatment records as well as the October 2015 and August 2020 VA examinations, demonstrate that the Veteran's gout has been productive of severely incapacitating exacerbations occurring four or more times a year. A January 2015 private treatment report reflects recurrent episodes of gouty arthropathy despite the use of allopurinol; however, Indocin relieved his symptoms promptly. In an October 2015 VA examination, although the VA examiner noted the Veteran had two incapacitating exacerbations a year, he also required the use of continuous medication and the Veteran reported having gout attacks weekly and that his condition became progressively worse. In a January 2016 letter, the Veteran's private physician reported that the Veteran was plagued with frequent attacks of gout that were disabling, averaging about two a month, and he had missed work due to these attacks. A January 2016 letter from the Veteran's employer reflects that he missed 18 days of work from November 2014 through January 2016. In an October 2016 VA outpatient treatment report, the Veteran reported a decrease in acute flares of his gout from weekly to every two to three weeks. At that time, he was diagnosed with gout, which was characterized as recurrent gouty attacks, defined by occurring greater than or equal to two attacks per year. Per a March 2020 VA outpatient treatment report, the Veteran reported having to go to urgent care for treatment of his gout a month earlier. Also in a separate March 2020 VA outpatient treatment report, the Veteran stated his last attack of gout was two weeks earlier and that he had bad attacks weekly. In a June 2020 letter, the Veteran's private physician who had been treating him for over 10 years reported that the Veteran had gout that was "quite refractory," or stubborn, to therapy. The private physician also found that, despite treatment with allopurinol and Uloric treatment, he continued to have episodes of acute arthritis consistent with gout in his feet up to one to two times per month without a clear precipitating cause. In a subsequent June 2020 letter, a private physician reported the Veteran had multiple gout attacks leading to treatment at urgent care, including in January 2020, April 2020 and May 2020. The private physician reported that she had attempted to control the flare-ups with suppressive treatment but without success and she referred him to a rheumatologist for further evaluations and treatment options. Although the VA examiner in the August 2020 VA examination for gout found that the Veteran's gout was not manifested by severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods, the VA examiner also specifically found that the Veteran had four or more incapacitating episodes of gout that were incapacitating and lasting less than one week. The VA examiner then noted that, with major flares of gout occurring three to four times per year, the Veteran missed one to two days of work due to foot pain. In a subsequent August 2020 VA examination of the feet, the Veteran reported that he had a serious gout attack in the feet about six times per year, lasting one to three days and was treated with colchicine and bed rest. Therefore, the Veteran's gout more nearly approximates a higher, 60 percent disability rating under the former criteria of DCs 5002 and 5017, though no higher, throughout the duration of the appeal period. The Board has considered the assignment of a higher disability rating; however, the probative evidence of record does not reflect that the Veteran's symptoms would render him totally incapacitated. The Veteran's gout has not been manifested by an active process with constitutional manifestations associated with active joint involvement that is totally incapacitating. Thus, there is no probative evidence that the severity of the Veteran's gout would warrant an increased rating higher than 60 percent. Accordingly, the Board concludes that the Veteran's gout warrants a higher, 60 percent disability rating, though no higher, throughout the duration of the appeal. 38 C.F.R. §§ 4.3, 4.7, 4.104; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.