Case 22060320

ZI-HENG ZHU · 2022 · Case ID: 22060320

MIXED

Summary

The Veteran, who served from September 1960 to November 1980, appeals the denial of an increased disability rating for bilateral feet gouty arthritis and the dismissal of claims for peripheral neuropathy. The Veteran withdrew the peripheral neuropathy claims, leading to their dismissal. The primary issue was whether the Veteran was entitled to a rating higher than 40 percent for gouty arthritis prior to February 28, 2022. The Board reviewed the criteria for gout under Diagnostic Code 5002 (prior to Feb 2021) and Diagnostic Code 5284 (after Feb 2021). Evidence showed the Veteran experienced recurring attacks with pain and swelling, and used a cane for support. However, prior to February 28, 2022, the Board found the Veteran's symptoms did not meet the criteria for higher ratings, such as incapacitating exacerbations occurring three or more times a year, or weight loss and anemia. The Board found the Veteran's statements credible and consistent with the assigned 40 percent rating for severe symptoms. For the period from February 28, 2022, onwards, the Board found that the Veteran's condition met the criteria for a 60 percent rating due to at least four incapacitating exacerbations per year, lasting less than a week each, causing pain, reduced range of motion, instability, and difficulty walking. The Board denied a 100 percent rating as the condition was not totally incapacitating. Service connection for gouty arthritis of the hands was granted at 10 percent, but this was not an issue on appeal.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-24 662

Full Decision Text

Citation Nr: 22060320
Decision Date: 10/27/22 Archive Date: 10/27/22

DOCKET NO. 17-24 662
DATE: October 27, 2022

ORDER

The issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremity, to include as due to herbicide agent exposure is dismissed.

The issue of entitlement to service connection for peripheral neuropathy of the bilateral upper extremity, to include as due to herbicide agent exposure is dismissed.

The issue of entitlement to a disability rating in excess of 40 percent, prior to February 28, 2022, for bilateral feet gouty arthritis (gout) is denied.

Entitlement to an increased rating of 60 percent, but not higher, from February 28, 2022, for bilateral feet gout is granted.

FINDINGS OF FACT

1. In January 2022, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the Veteran, that he is requesting withdrawal of his appeals of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities.

2. Prior to February 28, 2022, the Veteran's bilateral feet gouty arthritis did not manifest to symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year; or weight loss and anemia productive of severe impairment or severely incapacitating episodes occurring three or more times a year; or constitutional manifestations associated with active joint involvement and totally incapacitating.

3. From February 28, 2022, the Veteran's bilateral foot gout manifested with both non-incapacitating and incapacitating exacerbations at least four times a year.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of an appeal for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for a disability rating in excess of 40 percent, prior to February 28, 2022, for bilateral feet gouty arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5002, 5017.

4. The criteria for an increased rating of 60 percent, from February 28, 2022, for bilateral foot gout have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5002, 5017.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1960 to November 1980.

This matter comes before the Board on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office.

In October 2020, the Board remanded the claims for additional development. Thereafter, in September 2021, the Board issued a decision which denied a disability rating in excess of 20 percent for varicose veins of the right lower extremities while the remaining the claims of entitlement to an increased rating more than 40 percent for bilateral feet gouty arthritis and entitlement to service connection for arthritis of the right hand, left hand, peripheral neuropathy of the right and left lower extremity, and peripheral neuropathy of the right and left upper extremities, to include as due to herbicide agent exposure for further development. As will be discussed in more detail below, in January 2022, the Veteran withdrew his appeal as it pertains to the claims of bilateral upper and lower extremity peripheral neuropathy. Thereafter, following the Board's remand, a March 2022 rating decision granted service connection for left and right hand gouty arthritis and assigned a 10 percent rating effective January 28, 2013 and continued the 40 percent disability rating for service-connected bilateral feet gouty arthritis. Accordingly, the issues of entitlement to service connection for right and left hand gout
left lower extremity, and peripheral neuropathy of the right and left upper extremities, to include as due to herbicide agent exposure for further development. As will be discussed in more detail below, in January 2022, the Veteran withdrew his appeal as it pertains to the claims of bilateral upper and lower extremity peripheral neuropathy. Thereafter, following the Board's remand, a March 2022 rating decision granted service connection for left and right hand gouty arthritis and assigned a 10 percent rating effective January 28, 2013 and continued the 40 percent disability rating for service-connected bilateral feet gouty arthritis. Accordingly, the issues of entitlement to service connection for right and left hand gouty arthritis have been granted in full there is no case or controversy remaining before the Board on these issues. Therefore, the only remaining issue before the Board for adjudication herein is entitlement to a disability rating in excess of 40 percent for bilateral feet gouty arthritis.

Dismissal

In January 2022, the Veteran submitted correspondence indicating he wished to withdraw his claims regarding his "disability for neuropathy" but wished for his other claims to be considered by the appeals process. He indicated he was of the opinion that there was nothing he could submit in terms of medical evidence that would result in a favorable decision by the VA appeals process.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran has withdrawn his appeals for service connection for peripheral neuropathy of the bilateral lower and upper extremities appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.

Additionally, when 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). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).

Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

Entitlement to a disability rating in excess of 40 percent for service-connected bilateral feet gouty arthritis

The Veteran's gout of the bilateral feet was previously rated 40 percent disabling under Diagnostic Code 5017 for Gout. He contends his service-connected bilateral feet gouty arthritis warrants a higher disability rating.

The Board notes that the criteria for rating musculoskeletal disabilities, including Diagnostic Code 5017, have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, 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 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to their claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

Prior to February 7, 2021, the rating schedule provided that DC 5017 for gout was to be rated based on DC 5002. 38 C.F.R. § 4.71a. Under DC 5002, rheumatoid arthritis (atrophic) is rated either as an active process or for chronic residuals. As an active process, gout warrants a 20 percent rating when there are one or two exacerbations a year in a well-established diagnosis. See 38 C.F.R. § 4.71a, DC 5002. A 40 percent rating is warranted with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. Id. A 60 percent rating is warranted with manifestations less than those in 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. Id. A 100 percent rating is warranted with constitutional manifestations associated with active joint involvement, totally incapacitating. Id.

Although DC 5002 does not define an "incapacitating exacerb
diagnosis. See 38 C.F.R. § 4.71a, DC 5002. A 40 percent rating is warranted with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. Id. A 60 percent rating is warranted with manifestations less than those in 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. Id. A 100 percent rating is warranted with constitutional manifestations associated with active joint involvement, totally incapacitating. Id.

Although DC 5002 does not define an "incapacitating exacerbation," the term is defined elsewhere in the Rating Schedule, both within the same chapter regarding evaluating disability of the musculoskeletal system, specifically intervertebral disc syndrome, and in the rating schedule regarding the digestive system. As used therein, an incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note 1; 38 C.F.R. § 4.114, Diagnostic Codes 7345 and 7354, Note (2).

From February 7, 2021, DC 5017 for gout is to be rated based on limitation of the affected parts. See 38 C.F.R. § 4.71a. Here, the analogous diagnostic code for his feet would be DC 5284 for other foot conditions.

Under DC 5284, a 10 percent rating is provided for moderate impairment, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to DC 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a.

The evidence of record shows the Veteran's symptoms for bilateral feet is best rated under DC 5002 as 20 percent. However, the evaluation of bilateral feet gouty arthritis is continued as 40 percent. A higher evaluation of 60 percent is not warranted without evidence of active process with weight loss and anemia productive of severe impairment of health, severely incapacitating exacerbations occurring four or more times a year, or a lesser number over prolonged periods.

Turning to the medical evidence of record, a January 2013 statement from the Veteran indicated his gouty arthritis has been present in both of his feet since 1980. He reported experiencing reoccurring attacks in both of his feet since his retirement from the military, especially in the big toe area that often include swelling and pain in the entire foot and ankle.

On VA examination in June 2014, the Veteran was diagnosed with gout. He required continuous medication for his arthritis condition. However, he had not lost weight or was anemic due to his arthritis. Joint pain was experienced in his bilateral feet and toes. The Veteran had no limitation of movement or joint deformity attributable to the condition and there was no systemic involvement other than the joints. No incapacitating exacerbations were documented, and the Veteran did not require an assistive device for locomotion. Finally, the examiner noted the Veteran suffered from no functional impact due to his gout.

The Veteran also explained in his March 2019 statement that he suffered from reoccurring pains in his knees, wrists, and hands from his gout.

In his May 2019 VA Form 9, the Veteran expressed concern that his prior VA examiner was influenced by the fact he was not wearing support hose at the time of his examination. However, the Veteran stated that he was not given an opportunity to explain to the examiner that he wears high top athletic socks rather than support hose because they provide comfortable support without cutting off the circulation in his leg which cause increased swelling. Accordingly, the Veteran requested another physical examination for his gouty arthritis.

On July 2021 VA examination, the Veteran was again diagnosed with bilateral gout. He reported pain and swelling in the feet upon flare-ups. Flare-ups were also reported and described as periodic but severe bilaterally, lasting up to ten days. Functionally, the Veteran reported difficulty walking during flare-ups. The severity of his bilateral gout was noted as severe. However, the foot condition did not chronically compromise weight bearing or require arch supports, custom orthotic inserts or shoe modifications, nor was surgery required. There was no pain on physical examination but swelling, disturbance of locomotion, and pain were all noted. Bilaterally, the Veteran suffered from difficulty walking and a
outy arthritis.

In February 2022, the Veteran attend another VA examination for his gout. He was diagnosed with bilateral gout arthritis. Pain was reported in both feet, and he had difficulty with prolonged standing at times and movement of his joints. Flare-ups were also reported in the feet, 3 to 5 times a month and were described as severe. Rest and medication were required. Functionally, the Veteran's gout causes difficulty with prolonged standing at times and movement of his joints. His gouty arthritis and frequent flare-ups of the bilateral feet were described as moderately severe in nature. The foot condition chronically compromised weight bearing and required arch supports, custom orthotic inserts or shoe modifications. Pain on physical examination was noted in both feet, and contributing factors of disability included less movement than normal, instability of station, interference with standing, and pain. Functional loss due to pain, during a flare-up and/or after repeated use over time included pain, less movement than normal, and instability of station. Evidence of pain was noted with passive motion, active motion, weight bearing, non-weight bearing, and on rest/non-movement. A constant use of a cane was required for his gouty arthritis of the bilateral feet. Lastly, the examiner noted that the Veteran did suffer from both non-incapacitating and incapacitating exacerbations of his gout more than 4 times in the last 12 months, lasting less than a week each time. Such was noted to cause increased pain, severe decreased in range of motion, instability of station, to include difficulty walking; this, however, was noted to not include constitutional manifestations associated with active joint involvement which was totally incapacitating.

After a review of the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted for the entire period on appeal. Prior to February 28, 2022, the Veteran did not suffer from symptoms that indicate definite impairment of health objectively or incapacitating exacerbation occurring three or more times a year, severe impairment of health, or totally incapacitating episodes. Moreover, the Board further notes that at no time during this period, did the Veteran's condition involve "incapacitating exacerbations or episodes" required prescribed bed rest from a physician. To this end, the Board has considered the Veteran's contention of flare-ups, to include pain and limitation of motion, however, find that such does not approximate what is considered incapacitating, as neither the Veteran nor the medical evidence has noted that such flare-ups require something akin to prescribed bedrest. The evidence also do not show that the Veteran's condition has manifested by weight loss or anemia productive of severe health impairment, or active joint involvement that is totally incapacitating, which would warrant 60 or 100 percent ratings under the old criteria of DC 5002 for the period since February 28, 2021. See 38 C.F.R. § 4.71a, DC 5002.

Additionally, under DC 5284, a maximum rating of 40 percent is assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. Here, the Veteran has retained use of his foot. Notably, the Veteran has not suffered from any other condition of the foot such as flat feet, weak foot, malunion or nonunion of the tarsal or metatarsal bones, or clawfoot, which would warrant consideration of a higher rating under another Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-83.

Moreover, although the Veteran's symptoms were noted as moderately severe overall, the Veteran's flare-ups were documented as being severe, as well as pain, less movement than normal and instability of station. However, even with consideration of DeLuca and the amended criteria, the Board finds the Veteran's rating of 40
has retained use of his foot. Notably, the Veteran has not suffered from any other condition of the foot such as flat feet, weak foot, malunion or nonunion of the tarsal or metatarsal bones, or clawfoot, which would warrant consideration of a higher rating under another Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-83.

The Board acknowledges the Veteran's assertions that he is entitled to a higher rating because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran's statements and finds them credible and consistent with the ratings assigned, noting the Veteran is presently assigned a higher disability rating than supported by the diagnostic criteria.

Accordingly, a rating in excess of 40 percent, prior to February 28, 2022, for bilateral feet gouty arthritis is not warranted. The benefit of the doubt doctrine has been applied. See Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021).

From February 28, 2022,

The Board finds that from February 28, 2022, the medical evidence, to include VA examination reports, reveal that the Veteran's condition has manifested with at least 4 or more incapacitating episodes of exacerbation. The February 2022 VA examination from this date explicitly notes that on both the orthopedic and Non-degrative arthritis examination reports, a finding by the medical professional that the Veteran's condition causes exacerbations that are incapacitating at least fours times in the last 12 months, and lasting less than a week each time. The Board finds such findings to be dispositive to meet the criteria for the next higher rating of 60 percent, under the appropriate Diagnostic Code, and as such, a higher rating is warranted.

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The Board, however, finds that a 100 percent rating is not warranted as both VA examination reports of record explicitly notes that the Veteran's bilateral foot condition was not productive of no constitutional manifestations associated with active joint involvement, which are totally incapacitating. As such, the Board must find that a 60 percent higher rating, but not higher, is warranted for this latter period, and as such, the Veteran's claim must be granted for this period.

Zi-Heng Zhu

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Churchwell, 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.

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