Citation Nr: 1040411 Decision Date: 10/27/10 Archive Date: 11/01/10 DOCKET NO. 03-24 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for gout, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for arthritis of the hands and feet, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from June 1951 to March 1971. The appeal comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Columbia, South Carolina. This appeal was previously before the Board in May 2004 and May 2009. The Board remanded the claims in May 2004 for a VA examination to determine the etiology of the gout and arthritis. In May 2009, the case was remanded to obtain medical records identified by the Veteran. In August 2010, the Board requested a VHA opinion to determine the etiology of the Veteran's claims. The case is before the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. Persuasive evidence of record indicates that the Veteran's arthritis of the hands and feet is causally or etiologically related to his service connected diabetes mellitus and coronary artery disease. 3. Persuasive evidence of record indicates that the Veteran's gout is causally or etiologically related to his service connected diabetes mellitus and coronary artery disease. CONCLUSIONS OF LAW 1. Arthritis of the hands and feet is proximately due to or the result of the Veteran's service connected diabetes mellitus and coronary artery disease. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.310 (2010). 2. Gout is proximately due to or the result of the Veteran's service connected diabetes mellitus and coronary artery disease. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that an error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006). The Court has held that when aggravation of a nonservice- connected condition is proximately due to or the result of a service-connected condition the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2009). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis Service treatment records indicate that in October 1953, the Veteran sustained injuries in a motorcycle accident including a simple fracture of the left wrist. In May 1959, he sustained a fracture of the 1st phalanx or the 2nd finger of the right hand, and refractured his right 5th metacarpal phalangeal joint head. A July 1963 X-ray report found an undisplaced chip fracture of the base of the distal phalanx of the great toe. The examiner remarked that there was a defect with some marginal sclerosis along the margin of the articulating surface of the radius, possibly indicative of osteochondritis dissecans or changes associated with moderately severe traumatic arthritis. In a July 1964 service treatment record the diagnosis was traumatic arthritis of the left wrist. A September 1968 service treatment record indicated the Veteran sustained a left clavicular fracture as a result of a motor vehicle accident. In a June 2001 service department record, the Veteran was noted to have diabetes mellitus, coronary artery disease with bypass grafting, renal insufficiency, and fairly extensive psoriasis of his legs. In an August 2001 Beaufort Naval Hospital record, the Veteran complained of pain in his foot and the examiner reported it "sounded like" gout. At this time the Veteran's prescribed medications for his service connected disabilities included Lasix, Glipizide, and Avandia. Medications not related to his service connected disabilities included Lisinopril, Lopressor, and Claritin. An April 2003 service department medical record included the diagnosis of gouty arthritis. A July 2004 VA examination report indicted medications including insulin, Lasix, Colchicine, and Glipizide. The Veteran was also prescribed Allopurinol, Salsalate, Metoprolol, Zoloft, Lisinopril, and Zocor. September 2004 and July 2006 VA examiners diagnosed gouty arthritis. A February 2006 VA examiner diagnosed gouty arthritis of the bilateral feet, and found that it was not as least as likely as not that his diagnosis was related to service. Following an August 2007 VA medical examination, the physician noted that while the Veteran had been diagnosed with gouty arthritis, given his psoriasis, he might have psoriatic arthritis, which presents similar to gouty arthritis. In an August 2007 VA progress note, the examiner diagnosed possible psoriatic arthritis and noted gout as not active. In an October 2007 VA rheumatology progress note, the examiner diagnosed probable tophaceous gout, and possible psoriatic arthritis. A March 2009 private X-ray report of the left hand found a well corticated bony density distal to the ulna, likely the ulnar styloid, consistent with old trauma. The diagnosis was extensive osteoporosis, and narrowing of the intercarpal joint spaces as well as the distal and proximal interphalangeal joints which may be related to an inflammatory arthropathy such as rheumatoid with superimposed degenerative osteoarthritis. In a VA progress note dated in August 2009, the Veteran's medications included insulin, Asprin, and Furosemide. The Veteran was also prescribed Calcinpotriene, Clobetasol, Loratadine, Omeprazole, Simvastatin, Terazosin, Allopurinol, Colchicine, Donepezil, Gabapentin, Lisinopril, Hydroxychloroquine sulfate, and Metoprolol Tartrate. In an October 2010 opinion, the rheumatologist opined, after reviewing the claims file, that it is unlikely/not at least as likely as not that the Veteran's arthritis was causally or etiologically related to his active service. The examiner noted that there is no documentation of gout or arthritis in hands or feet during his period of service. The examiner noted that the degenerative arthritis documented in the past few years is more likely related to age and the Veteran's occupation s a mechanic, but additionally mentioned that the claims file includes a diagnosis of probably psoriatic arthritis, which is not connected to active service. The examiner also opined that it is at least as likely as not that the Veteran's gout is causally or etiologically related to his service-connected conditions and related medications as the Veteran has risk factors which contribute to gout including chronic renal failure, diuretic use, diabetes mellitus, and coronary artery disease. In view of the totality of the evidence, including the Veteran's documented gout and the opinion of the October 2010 VA physician as to the positive correlation between his diagnosis and the Veteran's risk factors for gout such as service-connected diabetes mellitus and coronary artery disease, the Board finds that the Veteran's gout was as likely as not due to his service- connected disabilities. Consequently, the Board finds that, resolving reasonable doubt in the Veteran's favor, service connection for gout is warranted. As gout has been granted, the Board also finds that service- connection for arthritis is also warranted. In view of the totality of the evidence, including the Veteran's documented gouty arthritis and positive correlation between his service- connected gout by VA examiners, the Board finds that the Veteran's arthritis of the hands and feet is as likely as not a result of his service-connected gout. Although the October 2010 VA rheumatologist disagreed with the gouty arthritis diagnosis, the September 2004 and July 2006 VA examiners affirmed the gouty arthritis diagnosis as related to his service-connected gout. Furthermore, those examiners had the opportunity to examine the Veteran, while the October 2010 physician based his opinion on the evidence in the claims folder, without having the chance to examine the Veteran. Consequently, the Board finds that the evidence of record is at least in equipoise, and therefore, affording the Veteran the benefit of the doubt, service connection for gouty arthritis of the hands and feet, due to or as a result of service-connected disabilities is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for gout, to include as secondary to service-connected disabilities is allowed. Entitlement to service connection for arthritis of the hands and feet, to include as secondary to service-connected disabilities is allowed. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs