Citation Nr: 1237215 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 03-05 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for gout. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1959 to September 1960 and from May 1963 to June 1970. He subsequently had service in the U.S. Navy Reserve through July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A Travel Board hearing was held at the RO in July 2003 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. This case has a long and complicated procedural history which was described in detail in the Board's most recent decision in this appeal in September 2009 and will not be repeated in its entirety here. The Board observes in this regard that the Veteran's active service does not meet the regulatory definition of Vietnam service found in 38 C.F.R. § 3.307(a)(6)(iii) and upheld by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). Following the Federal Circuit's decision in Haas, in March 2009, the United States Court of Appeals for Veterans Claims (Court) affirmed that part of a February 2004 Board which had denied a claim of service connection for diabetes mellitus with peripheral neuropathy, nephropathy, and retinopathy based on in-service herbicide exposure. The Court also vacated and remanded that part of a February 2004 Board decision which had denied a service connection claim for diabetes mellitus with peripheral neuropathy, nephropathy, and retinopathy on a direct service connection basis. See also 38 C.F.R. §§ 3.303, 3.304 (2011). In September 2009, the Board granted the Veteran's service connection claim for diabetes mellitus with peripheral neuropathy, nephropathy, and retinopathy on a direct basis. Id. The Veteran then appealed the Board's September 2009 decision to the Court. In a March 2012 decision, the Court found that, although a claim of service connection for gout could be inferred from a review of the evidence of record, the Board had not adjudicated this claim in its September 2009 decision. See Haas v. Shinseki, No. 10-2572 (Vet. App. Mar. 28, 2012). The Court also found in its March 2012 decision that the issue of entitlement to service connection for gout should be remanded to the Board for adjudication in the first instance, to include a determination by the Board of when this claim first was raised by the evidence of record. Id. Unfortunately, as is explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claim of service connection for gout can be adjudicated. In its September 2009 decision, the Board discussed evidence of in-service treatment for gout in the Veteran's available service treatment records. See Board decision dated September 28, 2009, at pp. 5-6. As noted in the Introduction, the Court found in its March 2012 decision that a claim of service connection for gout could be inferred from a review of the evidence of record. See Haas v. Shinseki, No. 10-2572 (Vet. App. Mar. 28, 2012). The Court also found in its March 2012 decision that the status of the Veteran's service connection claim for gout was unclear as representations were made to the Court by VA's Office of General Counsel (OGC) that this claim was under development at the Phoenix RO. See Haas v. Shinseki, No. 10-2572 (Vet. App. Mar. 28, 2012), at pp. 3. The Court also noted in its March 2012 decision that it had been informed by OGC that a VA examination for gout had been scheduled for the Veteran. Id. A review of the claims file confirms that, in a Deferred Rating Decision dated on February 27, 2012, RO personnel requested that a VA examination be scheduled for the Veteran on the nature and etiology of his gout. It is not clear from a review of the claims file whether this examination has occurred, however. It also is not clear whether the RO has adjudicated a claim of service connection for gout since the Court's March 2012 decision. The Board notes in this regard that, in a rating decision dated on February 28, 2012, and issued to the Veteran on April 23, 2012, adjudication of a claim of service connection for gout was deferred for additional development. The Board also notes in this regard that there is no relevant information concerning a service connection claim for gout available in the Veteran's Virtual VA claims file. It appears that, following the rating decision dated on February 28, 2012, and issued to the Veteran on April 23, 2012, the RO then certified this appeal to the Board without taking further action on the Veteran's service connection claim for gout. Given the foregoing, and especially in light of the Court's March 2012 decision, the Board finds that, on remand, a copy of the Veteran's VA examination for gout (referred to in the February 27, 2012, Deferred Rating Decision) and any rating decision(s) on the Veteran's claim of service connection for gout should be obtained and associated with the claims file. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. The Board notes in this regard that the most recent VA treatment records associated with the Veteran's claims file are dated only through November 2009. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA clinicians who have treated him for gout since his separation from active service. Advise the Veteran not to resubmit any records already provided to VA. Return to the Veteran any duplicate records he submits to VA in response to this remand. Obtain all VA treatment records which have not been obtained already, to include any VA examination reports prepared since February 1, 2012. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. If, and only if, a VA examination for gout (referred to in a February 27, 2012, Deferred Rating Decision) has not occurred, then schedule the Veteran for appropriate examination to determine the nature and etiology of his gout. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that gout, if diagnosed, is related to active service or any incident of service. If the examiner determines that gout was not related to active service or any incident of service, he or she should also offer an opinion as to whether it is at least as likely as not that any of the Veteran's service-connected disabilities caused or aggravated (i.e., permanently increased in severity beyond the nature progression of the disease) his gout. If the examiner determines that there has been aggravation of the Veteran's gout as a result of his service-connected disabilities, the examiner should report the baseline level of severity of the gout prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the gout. The examiner must provide a rationale for any opinion offered, taking into consideration the full evidence of record, to include medical and lay evidence. The examiner is advised that the Veteran's available service treatment records show in-service treatment for gout in October 1967. The examiner also is advised that the Veteran contends that his current gout is related to active service. The examiner finally is advised that the Veteran was not exposed to herbicides during active service for VA compensation purposes. 3. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).