M.D. hired Friedman Disability for legal help in September 2014 after the VA denied his claim for service connection for the painful gout in his elbows and knees, which had previously been misdiagnosed as bursitis. M.D. enlisted in the United States Army in 1982 and served until he was honorably discharged in 1991, and was granted service connection for hypothyroidism and hypertension shortly after leaving the Army. The VA, however, denied his claim for service connection for gout by relying solely on the opinion of an examining Competency and Pension (C&P) physician who claimed that there was no “pathophysiological association” between M.D.’s service-connected hypothyroidism and his gout diagnosis. In adopting the opinion of its C&P examining physician, the VA improperly rejected the favorable medical opinions of M.D.’s treating physicians and endocrinologist, all of whom believed that M.D.’s gout was more likely than not caused by his hypothyroidism based on their treatment history with M.D. and the medical literature establishing such a connection.
Our firm compiled the favorable medical evidence of record and filed a Notice of Disagreement (NOD) on the veteran’s behalf. This NOD showed that he should be granted service connection for his gout and that he should be awarded a total disability rating based on individual unemployability (TDIU) because his gout flare-ups kept him bedridden for five to seven days each month, preventing him from following a substantially gainful occupation (SGO) because of his inability to maintain regular attendance.
In a 2015 rating decision, the VA rejected M.D.’s TDIU claim, and refused to adjudicate the gout claim with which the TDIU claim was inextricably intertwined. In light of this obvious failure, our firm filed another NOD on the client’s behalf requesting prompt adjudication of his claim for service connection for gout and reconsideration of a TDIU rating. In 2016, the VA agreed with our firm’s analysis and granted M.D. service connection for gout, effective 2012 and rated as 20 percent disabling. This additional rating resulted in a combined rating of 50 percent and an award of over $13,000 in past-due benefits.
Our firm believed that the VA erred in only assigning M.D.’s gout only a 20 percent rating. The VA itself expressly stated that M.D.’s gout flares “were found to result in 4 or more incapacitating exacerbations a year.” According to Diagnostic Code 5017-5002, the VA is required to assign a 60 percent evaluation for gout when a veteran’s symptoms are “productive of… severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods.” Our firm filed another NOD identifying this clear error. We also obtained and submitted to the VA a sworn declaration from a vocational expert explaining that an individual who had as many and severe incapacitating episodes of gout was unemployable because he could not satisfy the basic standards for maintaining regular attendance employers accepted.
Based on our written analysis and our vocational expert’s opinion, in September 2017 the VA issued a rating decision increasing M.D.’s schedular rating for gout to 60 percent, and granted him individual unemployability benefits with a 2012 effective date. This resulted in an award of more than $133,000 in additional past-due benefits and current disability paid at the 100 percent rate.