Citation Nr: 1237221 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 06-12 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for gout, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a skin disorder, to include venous stasis dermatitis and lichen simplex chronicus. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right eye disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from May 1974 to November 2002; he retied as a senior noncommissioned officer. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision rendered by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was before the Board on a prior occasion, and it was remanded for procedural and evidentiary development in April 2010. The issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right eye disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Gout was manifest during wartime service. 2. Venous stasis dermatitis and lichen simplex chronicus are attributable to wartime service. CONCLUSIONS OF LAW 1. Gout was incurred in wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 2. Venous stasis dermatitis and lichen simplex chronicus were incurred in wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2011). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2011). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). As discussed in more detail below, sufficient evidence is of record to grant the claim for service connection for gout and a skin disorder. Therefore, no further development is needed with respect to this claim. Legal Criteria-Service Connection The Veteran has appealed the denial of service connection for gout and a skin disability. After repeated attempts to develop the evidence, the Board shall base the decision on the evidence of record. Veterans are entitled to compensation from the DVA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Analysis Gout Service treatment records reveal that in November 2000, December 2000, and February 2001, crystal arthropies/gouty arthritis site unspecified was assessed. In November 2000, uric acid serum test revealed results of 6.1 mg/dl. Another exam revealed results of 7.7 mg/dl. In March 2001, chronic right toe pain was diagnosed. Negative work-up for gout, plain films negative was noted at that time, and Indocin was prescribed. Complaints of right ankle pain of two day duration were noted in October 2001, and an assessment of rule-out gout was given. Additionally, in October 2001, uric acid serum test revealed results of 8.3 mg/dl. In April 2002, an x-ray examination was positive for increased uptake in the MTP consistent with degenerative change. Post-service, in February 2004, it was noted that the Veteran complained of right foot swelling. At that time, it was reported that a visit to the emergency room (ER) was necessary, and it was again reported that the Veteran was being treated with medication for gout. In the same clinical consultation, the Veteran reported that he had a similar episode in service two years prior, and that he had received a blood test that did not indicate gout. In April 2004, an assessment was given of right wrist and right first MTP joint swelling, clinical diagnosis of gout as original aspirate not processed, s/p prednisone times one week, now much improved per appellant. Gout, with uric acid in upper limits of normal, was noted in late April 2004. In May 2004, it was noted that the right wrist was an unusual place for gout attack but it was still possible. It was noted that more likely the appellant had a soft tissue trauma to that area. In September 2005, the appellant related that he had gout in service and such has continued since service. Polyarticular gout generally improved since started on daily colchicine with Indocin as needed was noted in February 2006. Gout was diagnosed in July 2006 and again the condition, with no active flare-up, was noted in January 2007 (was described as stable gout). The record further demonstrates that the appellant has been prescribed medication for gouty attack. The Board concludes that the evidence supports the claim for service connection for gout. During service, there was an assessment of crystal arthropies/gouty arthritis, supported by laboratory findings. Since separation, the Veteran has been treated for his complaints and provided medication for gout. We are unable to conclude that the current manifestations are unrelated to the in-service manifestations. Furthermore, the negative evidence provided in VA medical opinions in this case is rather equivocal and unconvincing. That is, it contains contradictory assessments of the Veteran's disability picture and service history, and is not adequate with its supporting rationales. Thus, all doubt will be resolved in the Veteran's favor, and the Board can conclude that gout had causal origins in service. Accordingly, as the criteria for service connection have been met, the claim will be granted. Skin Disorder Service treatment records reveal that in October 1975, a fungi growth around the patella was noted. Rash was assessed. In August 1977, popular rash/possible infect secondary to barbus was assessed. Later that month, rash on back of neck with a change medication was noted. In February 1978, a rash abnormality on the right arm was noted, and itching during the night was reported. Tinea versicolor was diagnosed in April 1988, an in May 1994, the appellant complained of a rash to the left forearm of one day duration. At that time, questionable contact dermatitis was assessed. In September 2003, the appellant complained of a rash over his legs and generalized body itching for two weeks. Pruritus was diagnosed in October 2003. The appellant was seen in October 2003 for pruritus and rash over his entire body. In September 2005, the appellant related that he had a rash in service and such has continued since service. The Veteran was to be afforded a VA skin examination which addressed the nature and etiology of any currently present skin disorder. In June 2010, the examiner noted that the Veteran had a long-standing diagnosis of venous stasis dermatitis and lichen simplex chronicus. In January 2012, the Veteran's claims file was returned to the examiner who conducted the earlier assessment to provide an addendum opinion addressing etiology. At this time, the examiner stated that sun exposure was responsible for the Veteran's skin changes, and that this "was not specific to any participation in the service." That is, that chronic sun exposure has a cumulative effect. According to service personnel records, the Veteran spent his formative years in American Samoa, which has a tropical climate. Despite this, the Veteran was not found to exhibit any sun exposure-related skin abnormality upon his entrance to service, and he was accepted for enlistment. Following his entrance onto active duty, the Veteran spent over twenty years in the Marine Corps working in motor transport. The DD Form 214 reflects award of the Combat Action Ribbon for participation in the Persian Gulf War, and thus the Veteran would have, by necessity, spent some time in the arid, and persistently sunny deserts of the Middle East. Also, as a motor vehicle operator, the Veteran's duty would, most likely, require him to be outside for extended periods of time. As noted by the examiner, following service, the Veteran has also lived in sunny climates, first in Southern California and now in Las Vegas. Essentially, the medical examiner has concluded that chronic sun exposure is the causal factor for the current skin disorder. The Veteran has contended that he began to notice skin problems in service, and service treatment records show that there were skin eruptions while on active duty. While there may have been some pre-service sun exposure, there was no skin abnormality noted at service entry, and the 21-year period of active duty involved significant sun exposure where manifestations of skin problems were, indeed, noted. The Veteran has apparently had flare-ups of skin problems since retirement from active duty because of his living in sunny climates; however, in light of the service treatment history, it can be concluded that these problems did not begin after the Veteran left active duty. Thus, the medical evidence of record links the Veteran's skin disorder to chronic sun exposure. As a significant portion of this sun exposure happened on active duty, and as there was no indication of pre-service problems, all doubt will be resolved in the Veteran's favor, and the Board can determine that the current venous stasis dermatitis and lichen simplex chronicus had causal origin in active service. As such, the claim is granted. ORDER Entitlement to service connection for gout is granted. Entitlement to service connection for venous stasis dermatitis/lichen simplex chronicus is granted. REMAND New and Material Evidence/Claim Clarification Firstly, with regard to the Veteran's claim for an eye disorder, the Board notes that the appellant was denied service connection for a right eye disability (claimed as distant vision) in February 2003. He did not appeal that decision within a year of notification to him, and it became final. His application to reopen the claim for service connection for a right eye disability was denied in an August 2005 rating decision, as the RO had determined that new and material evidence had not been submitted. See 38 C.F.R. § 3.156. The Veteran posited a timely notice of disagreement with this decision in September 2005, and a substantive appeal to the Board was received. Essentially, in forwarding his appeal to the Board, he related that his vision changes when he tries to focus his eyes to see things clearly. As noted briefly above, the record shows that in a September 2007 rating decision, a separate compensable evaluation was granted for the residuals of a right occipital craniotomy. As a procedural matter, the Board notes that in the November 2007 VA Form 646, the Veteran's representative did not include the issue of entitlement to service connection for a right eye disability as an issue on appeal. The Board further notes that, in December 2007, the RO related that there was a full grant on the issue of entitlement to service connection for right eye and that the issue was withdrawn. In the Board's April 2010 remand, it was noted that the RO's grant of service connection for cranial defect, metallic plates and screws, status right occipital craniotomy, was a separate issue from that contemplated by the complaint of vision impairment. It was expressly directed that the RO should contact the appellant and ask him if the grant of service connection for cranial defect, metallic plates and screws, status right occipital craniotomy satisfied his claim for service connection for a right eye disability, or, if not, whether he wished to continue his appeal. A letter was sent to the Veteran in May 2010. The Veteran, in a statement submitted to the Board in April 2012, complained that his eye was "still numb." While he made no mention of vision defects, his representative maintained that the issue was on appeal in his submission of an informal hearing presentation. Thus, it would appear as if the claim is still in appellate status; however, with submissions made to the Board since the issuance of the last remand, the Board notes that the RO must engage in some necessary development. Specifically, in the April 2012 note, the Veteran stated that he had continual treatment with both VA and Department of the Air Force caregivers for his various medical conditions. With specific regard to the eye, the Veteran stated that a physician has recently explained to him that "nothing can be done," and that he will "[have] to live like that for the rest of [his] life." Thus, it is apparent that the Veteran has contended having some recent additional treatment for his right eye, the records of which are not part of the claims file. As these records could potentially be new and material and thus, supportive of the claim, efforts must be made to secure them prior to a final adjudication. It is noted that the Veteran has alleged treatment at the VA Medical Center in Las Vegas, Nevada (Veteran moved to Las Vegas in June 2011) and as an eligible military retiree at the clinic/Emergency Department of Nellis AFB, Nevada. As these are federal facilities, records held at those facilities are deemed constructively part of the record. Thus, efforts must be made to obtain any outstanding VA and recent Department of the Air Force records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include those relating to ophthalmology/optometry care at the VA Medical Centers in Loma Linda, California and Las Vegas, Nevada. Also, contact the Department of the Air Force (Nellis AFB) and request any clinical treatment records, particularly those relating to right eye complaints, which may be outstanding. Should no records be available, annotate the record. 2. Thereafter, re-adjudicate the claim on appeal. If the benefit remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and the case should be returned to the Board for final adjudication. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs