Citation Nr: 0810842 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-17 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for gout. 2. Entitlement to service connection for a right elbow disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The veteran served on active duty from January 1970 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that denied an application to reopen a claim of entitlement to service connection for gout and entitlement to service connection for a right elbow disability. In August 2007, the veteran testified at a hearing before the undersigned. Entitlement to service connection for gout was earlier denied in a January 1996 rating decision. That decision was unappealed and is final. 38 U.S.C.A. § 7105 (West 2002). Thus, regardless of any RO action, the current claim to reopen may be considered on the merits only if new and material evidence has been submitted since the January 1996 decision. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). The issues of entitlement to service connection for gout and a right elbow disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence received since the January 1996 rating decision is new and when considered with previous evidence of record relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for gout. CONCLUSION OF LAW The veteran has submitted new and material evidence sufficient to reopen the claim of entitlement to service connection for gout. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that his gout began during or is a result of his military service. It is requested that the veteran be afforded the benefit of the doubt. Service connection for gout was previously denied by the RO in a January 1996 rating decision because the record did not contain evidence linking the veteran's gout to his military service. Later in January 1996, the veteran was provided notice of this denial at his last address of record and he did not appeal. The law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to give consideration to all of the evidence received since the January 1996 decision in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). Using these guidelines, the Board has reviewed the additional evidence associated with the claims folder since the rating decision in question and finds that the evidence includes, for the first time, medical opinion evidence indicating that the veteran's gout may have had its onset during his military service. Specifically, in a September 2003 letter from Timothy Lindamood, M.D., it was opined as follows: [The veteran] has been a patient in my practice since 1990 . . . The patient was diagnosed with . . . gout . . . in 1994 . . . The patient reports that he has been evaluated and treated for 'arthritis' and related joint conditions for many years prior, and it appears in retrospect that some of these arthritic flare-ups were probably gouty in nature, even prior to the confirmed diagnosis in 1994. I encourage you to consider that prior evaluations for joint pain were likely to represent gout . . . This statement, the credibility of which must be presumed, Kutscherousky, supra, provides for the first time medical evidence that current gout is due to military service. Thus, the Board finds that the additional medical evidence is both new and material as defined by regulation. 38 C.F.R. § 3.156(a). The claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). As to the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), because the Board is rendering a decision in favor of the veteran to the extent outlined above and is remanding the underlying claim of entitlement to service connection, a discussion of the VCAA is unnecessary at this time with respect to this aspect of the appeal. ORDER The claim of entitlement to service connection for gout is reopened. REMAND While the veteran has submitted new and material evidence to reopen his claim for gout, given the state of the law and evidence as discussed below, the Board finds that the underlying claim must be remanded for further evidentiary development before the merits may be addressed. In this regard, the veteran testified at his August 2007 personal hearing that in either 1991 or 1992 he was first diagnosed with gout at the "Mission Park Medical Center." He also testified that at that time he was prescribed "allopurinol" to prevent gout flare-ups and that he has taken this medication ever since that time. The veteran thereafter testified that he continues to receive annual examinations for gout at the "Mission Park Medical Center." While the record contains at least some of the veteran's treatment records from Sharp Mission Park Medical Group, which were obtained as part of the medical records obtained from the claimant's employer, neither these records nor any of the other medical records found in the claims files show the claimant being diagnosed with gout prior to 1994. However, the record also shows that the RO's requests for the veteran's records from Sharp Mission Park Medical Group asked for his post-January 2003 treatment records. Accordingly, since such information could be critical to establishing the veteran's claim (see 38 C.F.R. § 3.303(b) (2007)), the Board finds that a remand to make a specific request for these records is required. See 38 U.S.C.A. § 5103A(b) (West 2002). Given the fact that service medical records document complaints of joint pain at examinations conducted in December 1988 and May 1989, and the post-service records diagnose gout starting in at least December 1994, as well as the September 2003 opinion from Dr. Lindamood that, without the benefit of the record on appeal, his gout could be related to his military service, on remand the veteran should be afforded a VA examination to obtain medical opinion evidence as to the origins of the gout. See 38 U.S.C.A. § 5103A(d) (West 2002). As to entitlement to service connection for a right elbow disability, the veteran testified that current problems were caused by over use of the elbow playing sports for 20 years while in military service and while working in a machine shop for several years during that service. He also testified that he was treated on at least one occasion for right elbow pain during military service. The veteran thereafter testified that while he had problems at work because of right elbow pain as early as 1991, he only sought treatment in 1994 after aggravating his injury at work because his boss ordered him to get treatment. Tellingly, service medical records document the fact that he sustained a number of injuries, but not a right elbow injury, playing football, softball, and basketball in service. Moreover, January 1985 service medical records show the veteran's complaints of right elbow pain and a diagnosis of right ulnar entrapment. In addition, a January 1985 right elbow x-ray noted probable effusion and "?loose bodies degenerative changes." Furthermore, the post-service medical records first show the veteran's complaints and/or treatment for right elbow pain diagnosed as a ligament stain and right lateral epicondylitis starting in July 1999. An August 1999 right elbow x-ray also showed arthritis. See Sharp Mission Park Medical Group treatment records dated from July 1999 to December 1999. However, employment records also show that the veteran sought treatment in July 1999 for right elbow pain as a result of an on the job injury. Therefore, since the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition under certain conditions (see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007)), and the in-service and post-service medical records show problems with the right elbow, the Board finds that a remand is also required to obtain medical opinion evidence as to the origins of the veteran's current right elbow disability taking into account the in-service problems and the post-service job injury. See 38 U.S.C.A. § 5103A(d); Also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2003). A review of the record also shows that the July 2006 VA joints examiner noted that the veteran had a history of arthroscopic surgery on the right elbow. However, copies of the medical records surrounding this surgery do not appear in the claims files. Therefore, while the appeal is in remand status, copies of these records should be obtained and associated with the record. See 38 U.S.C.A. § 5103A(b). Therefore, the appeal is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC, after obtaining all needed authorizations from the veteran, should obtain and associate with the record all of the veteran's records surrounding his right elbow arthroscopic surgery as well as all of his post-1990 treatment records from Sharp Mission Park Medical Group including a list of all the medications he was prescribed for gout and the dates of those prescriptions. If any of the pertinent records are not available, or if the search for the records yields negative results, that fact should clearly be documented in the claims files and the claimant notified in writing. 2. As to entitlement to service connection for gout, after undertaking the above development to the extent possible, the RO/AMC should make arrangements with an appropriate VA medical facility for the veteran to be afforded an examination. The claims folder is to be provided to the physician for review in conjunction with the examination. All indicated tests and studies deemed appropriate by the examiner must be accomplished and all clinical findings should be reported in detail. Thereafter, the physician should provide an opinion as to whether it is as likely as not that the veteran's gout was caused or aggravated by military service. The physician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 3. As to entitlement to service connection for a right elbow disability, after undertaking the above development to the extent possible, the RO/AMC should make arrangements with an appropriate VA medical facility for the veteran to be afforded an orthopedic examination. The claims folders are to be provided to the physician for review in conjunction with the examination. All indicated tests and studies deemed appropriate by the examiner must be accomplished and all clinical findings should be reported in detail. Thereafter, the physician should provide an opinion as to whether it is as likely as not that any of the veteran's current right elbow disabilities were caused or aggravated by military service taking into account the in-service problems including those documented on the January 1985 x-ray and the July 1999 post-service job injury. The physician should also provide an opinion as to whether it is as likely as not that right elbow arthritis manifested itself to a compensable degree within the first post- service year. The physician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 4. If, while in remand status, additional evidence or information received triggers a need for still further development or assistance under the VCAA, such as providing updated notice of what evidence has been received and not received by VA as well as who has the duty to request evidence, then such development should be undertaken in accordance with the Court's holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). See 38 U.S.C.A. §§ 5100, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). 5. Thereafter, the RO/AMC should readjudicate the issues on appeal. The RO/AMC is advised that it is to make a determination based on the appropriate regulations as well as any further changes in the VCAA, and any other applicable legal precedent. If any of the benefits sought on appeal remain denied, the veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Steven L. Keller Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs