Citation Nr: 1200747 Decision Date: 01/09/12 Archive Date: 01/20/12 DOCKET NO. 07-24 362 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for gout, to include as secondary to service-connected disability(ies). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran had active duty service from August 1982 to August 1986 and November 1986 to September 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision in which the RO denied service connection for gout of the feet and bilateral knees. The Veteran and his spouse testified at a Board hearing at the RO in April 2009; a copy of the transcript is associated with the record. The case previously was remanded in February 2010. It is now before the Board for further appellate consideration. FINDING OF FACT The Veteran's gout is causally related to the Veteran's active duty service. CONCLUSION OF LAW Gout was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2011); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2011), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). There is no need to undertake any review of compliance with the VCAA and implementing regulations since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran are being granted by this decision of the Board. By letter dated in September 2007, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. Analysis Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (2011). The U.S. Court of Appeals for Veterans Claims (Court) has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995). During the Board hearing, the Veteran asserted that the onset of his gout was probably about a year before his discharge from service in 2003 based on an x-ray of his big toe which shows disintegration at the bone in his big toe; that it was not until two or three years ago that a naval physician diagnosed him with gout; and that the last military doctor had told him that he probably had gout in his knees and that was why they swell so easily, but he never diagnosed the Veteran as having gout. He indicated that lab tests taken in October 2004 and within four months after his discharge from service showed high levels of uric acid that causes gout. Service treatment records reveal that the Veteran was first seen for right knee pain in April 1990 for which he was treated on several occasions. In August 1997, he was seen for complaints of left knee pain after a twisting injury that was assessed as a medial meniscus injury and treated with physical therapy. Intermittent complaints of left knee pain were shown since then. He was assessed with osteochondritis of the right knee in November 1998 and had an osteochondral autograft transplant to the medial femoral condyle in October 1998 and arthroscopic surgery in March 2001. November 2003 x-rays showed moderate degenerative joint disease in the right knee and normal findings for the left knee. He received steroid injections in the right knee in February 2004. In May 2003, the Veteran underwent physical therapy for his left knee chondromalacia. On a May 2004 report of medical assessment, the Veteran indicated that he had knee problems and was concerned about both big toes, which hurt and had calluses. A June 2004 VA pre-discharge examiner noted bunions/calluses on both of the Veteran's big toes. In a June 2004 rating decision, the RO granted service connection for degenerative joint disease of the right knee, chondromalacia patella of the left knee, and bunions on both feet. Gout was not diagnosed at any time during either of the Veteran's two periods of active duty. Subsequently, the RO granted service connection for hypertension, noting that private medical records showed a diagnosis of high blood pressure in December 2004, less than three months after the Veteran's discharge from service. An April 2005 VA heart examiner indicated that the Veteran's hypertension was treated with Lotrel and hydrochlorothiazide (HCTZ) and opined that it most likely began in military service. VA treatment records dated from January 2005 to April 2005 reveal that the Veteran had a pronated gait with normal station and plantar-flexed metatarsophalangeal (MTP) joints on both big toes with sesmoid lesions. A January 3, 2005 uric acid test result was 10.2 mg/dL with the normal range of uric acid between 3.5 and 8.5 mg/dL. At a January 2006 VA wound consult, palpation of the Veteran's plantar right first metatarsal head was acutely tender; skin temperature was warm with slight erythema; and x-rays reveals a bipartite tibial sesmoid that might possibly have been a small fracture. The assessment was tibial sesmoiditis or possible fracture with possible infection to the surrounding skin. During a November 2006 VA feet examination, the Veteran reported that, while in service he had developed progressive hallux valgus deformity affecting the right big toe and underwent corrective surgery in late February 2006, since then he had complained of pain and discomfort affecting the right big toe that, in favoring the right big toe, he had aggravated pain affecting the left foot metatarsal bone that he was told is like a bunion growing towards the plantar surface of the left foot. This created a plantar keratosis, or callus formation, at the junction of the MTP joint. Following physical examination, the diagnoses were left foot plantar keratosis and clinical sesmoiditis affecting the first MTP joint of the left foot and left pes planus deformity. When seen in January 2007 at the Jacksonville Naval Hospital, the Veteran complained of bone pain in the left foot. It was noted that the left foot appeared deformed. Private hospital records reveal that the Veteran underwent a modified McBride bunionectomy with tibial sigmoid excision of the left foot for a mild bunion deformity of the left foot and hypertrophic bipartite tibial sesmoid of the left foot in early March 2007. A May 2007 sensory examination at the Jacksonville Naval Hospital reflected abnormalities in the first big toe of the left foot, which felt numb. On examination, there was swelling and tenderness on palpation of the lateral and dorsal aspects of the first toe. The recommendations included check uric acid. A June 2007 uric acid test result was 9.4 mg/dL. At a September 2007 follow-up, the Veteran was diagnosed with gout in the first MTP joint with a history of elevated uric acid on/off. A December 2007 progress note lists gout of the first MTP joint as a problem. In a December 2007 VA opinion as to whether the Veteran's gout was secondary to his service-connected bilateral knee and bunion disabilities, a VA physician indicated that standard medical literature states that gout is the result of enzyme deficiencies causing decreased processing of purines, a group of chemicals caused by destruction of nucleic acids. The result of this enzymatic deficiency is accumulation of uric acid in the joints causing acute and sometimes chronic inflammation. Accumulation of uric acid can occur also in people with normal enzyme degradation of purines when there is an overload of purines from a malignant neoplasm. Gout is not caused by traumatic arthritis of the knee, chondromalacia patella or bunions of bilateral feet. Thus, this physician concluded that the Veteran's gout is not caused by these service-connected conditions. In January 2008 VA joints and feet examination reports, the VA examiner opined that the Veteran's current conditions of hyperuricemia and gout of the first MTP joint of the left foot are not caused by or a result of his in-service complaints. In support, she noted that very careful review of his service treatment records revealed no objective evidence of gout or of hyperuricemia (high uric acid levels) during the Veteran's active duty. During examination, the Veteran reported that his feet hurt all through the military and would swell such that he could not wear his shoes, adding that they got progressively worse. His symptoms were treated with shoe inserts and Allopurinol. The VA examiner pointed to a handwritten December 2003 progress note, in which "nl Gait" was misread as "nl Gout." And the diagnosis was "CMP" which means chondromalacia patella bilateral. There was no diagnosis or assessment that the Veteran had gout at that time. In compliance with the Board's February 2010 remand, the claims file was reviewed by the January 2008 VA examiner and an addendum opinion was provided in May 2010. Her review of the claims file revealed that on January 3, 2005, the Veteran had a uric acid level of 10.2 mg/dL, at which time he was started on HCTZ, a thiazide diuretic, used to treat his service-connected hypertension. His uric acid level was noted to be 7.9 on testing in May 2005. On June 27, 2007, the Veteran's uric acid level was still high at 9.4 mg/dL. The Veteran had reported that he would have swelling of both feet, toes, and knees which felt like he was walking on glass. The left foot was worse and now felt like there was no cushion between toe and foot. The Veteran indicated that his problems had their onset during active duty and had become progressively worse. He took Allopurinol twice daily and Lortabs and Motrin during flare-ups. The Veteran had a history of 22 years on the flight deck wearing boots and bilateral bunion removals on both feet in 2006 and 2007. On physical examination, there was tenderness to palpation of the metatarsal area on both feet, along with callosities at the first and third metatarsal heads. Diagnoses included hyperuricemia, gout of the first MTP joint, bilateral hallux valgus status post surgery, and left third hammertoe. The VA examiner opined that the Veteran's hyperuricemia at least as likely as not began during service, as it was noted on labs within one year of release from active duty. With regard to gout, the VA examiner indicated that she could not resolve this issue without resorting to speculation. In support, she noted that there was no record of gout during the Veteran's active duty or for two years after his release from active duty. In support, she noted that: The Framingham Study showed that acute gout occurred in only 20% of patients with hyperuricemia. Hyperuricemia can be documented in at least 5% of asymptomatic Americans on at least one occasion during adulthood. The duration and magnitude of hyperuricemia directly correlate[s] with the risk for the development of gout. However, in only a minority of individuals with sustained hyperuricemia does clinical gout eventually develop, partly because increases in serum urate levels are relatively mild (i.e., serum urate less than 9.0 mg/dL) in most individuals or occur transiently in response to dietary and pharmacologic changes. Therefore, asymptomatic hyperuricemia without gout is not a disease. Caution should be used when hydrochlorothiazide is administered to patients with gout or hyperuricemia since thiazide diuretics have been reported to reduce the clearance of uric acid. Thiazide diuretics are well known to cause hyperuricemia. Since thiazides reduce the clearance of uric acid, patients with gout or hyperuricemia may have exacerbations of their disease. This VA examiner added that the Veteran's uric acid levels in January 2005 and June 2007 were over 9.0 mg/dL; however, the Veteran was started on a Thiazide diuretic in January 2005, which may have caused reduced renal clearance of uric acid thus precipitating/initiating the Veteran's gout. After weighing the evidence of record, and resolving all doubt in the Veteran's favor, the Board finds that service connection for gout is warranted. The Veteran has been diagnosed with gout. The next question is whether it is related to service or to a service-connected disability. In this regard, the Board has considered the Veteran's and his former comrade's contentions that he suffers from gout which had its onset while serving in the Navy. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, the Veteran and his former comrade are competent to say that he experienced symptoms while in service. The Veteran is also competent to report a continuity of symptoms since service. The Board finds that the Veteran is competent and credible to report that he had pain in both feet which started in service and continues to the present. On several occasions, the Veteran indicated that his feet hurt all throughout his time in the military and would swell such that he could not wear his boots/shoes. Moreover, in an October 2007 statement, one of his comrades reported that he would see the Veteran limping at times and that the Veteran would complain of a terrible pain in his foot and of burning and swelling that his comrade told him sounded like gout which his grandmother had. This is confirmed by a May 2004 report of medical assessment, in which the Veteran indicated that he had knee problems and was concerned about both big toes, which hurt and had calluses, and a June 2004 VA pre-discharge examiner's finding that there were bunions/calluses on both of the Veteran's big toes. Moreover, in the May 2010 VA examiner's addendum, she opined that that the Veteran's hyperuricemia at least as likely as not began during service, as it was noted on labs within one year of release from active duty. The evidence in favor of the Veteran's claim is certainly not compelling. Medical examiners have essentially indicated that the gout developed after service. With regard to the Veteran's foot complaints, he is certainly competent to report on such symptoms that he experienced. However, his statements regarding a continuity of gout symptoms must be viewed in light of the fact that he has had problems with bunions of both feet (which are already service-connected), and it may very well be that his foot complaints are related to the bunions, not gout. Nevertheless, after reviewing the evidence several times the Board is somewhat troubled by the fact that the hyperuricemia was detected very soon after discharge from service along with the fact that an examiner has offered an opinion that the hyperuricemia at least as likely as not began during service. Although there is also the medical opinion that not all individuals that have hyperuricemia develop gout, the Board believes that a weighing of the positive evidence and the negative evidence results in a state of equipoise as to whether gout also began during service. As such, service connection is warranted. The Board notes that, in the May 2010 addendum, the VA examiner also indicated that the HCTZ, which the Veteran takes for his service-connected hypertension, may exacerbate his gout, providing a basis for service connection on a secondary basis. However, as service connection is warranted on a direct basis, the Board need not enter into a discussion of any secondary service connection theory. In conclusion, in light of the available evidence, and with resolution of reasonable doubt in the Veteran's favor, the Board finds that service connection for gout is warranted. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue). ORDER Service connection for gout is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs