Citation Nr: 1300544	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  09-35 546	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for gout, to include as secondary to service-connected bilateral pes planus.  


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Dale, Counsel

INTRODUCTION

The Veteran served on active duty from June 1976 to June 1980, and the evidence reflects prior periods of service.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

In August 2011, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  

The Veteran's appeal was remanded by the Board in November 2011 so that outstanding private and VA treatment records could be obtained and associated with the record, and so the Veteran could be provided a VA examination to determine the nature and etiology of his gout.  Private treatment records from Drs. Wong, Kennedy and Clevenger as well as updated VA treatment records have been and associated with the record.  In December 2011, the VA Appeals Management Center (AMC) attempted to obtain outstanding treatment records from Ft. Ord dated from January 1982 to December 1983.  Later that month, the AMC received a reply indicating that no such records pertaining to the Veteran could be found.  The Veteran was notified of this negative response in January 2012.  In February 2012, the Veteran was provided a VA examination in connection with his claim.  As will be discussed below, the Board concludes that the February 2012 VA examination report is adequate for the purposes of adjudicating the Veteran's claim.  In September 2012, a formal finding as to the unavailability of the records from Ft. Ord dated from January 1982 to December 1983 was associated with the record.  The Veteran's claim was denied in a December 2012 Supplemental Statement of the Case (SSOC), and was returned to the Board.  Accordingly, the Board finds that there has been substantial compliance with the directives of the November 2011 Remand, such that an additional remand to comply with such directives is not required.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).  

In March 2011, the Board granted the Veteran's claim to establish service connection for bilateral pes planus and remanded his claims to establish service connection for right and left knee disorder for further development.  In a January 2012 rating decision, the AMC effectuated the Board's grant of service connection for bilateral pes planus; a noncompensable (zero percent) evaluation was assigned, effective from April 20, 2007.  In an October 2012 rating decision, the AMC established service connection for separate right and left knee disabilities.  To date, the Veteran has not expressed disagreement with the assigned evaluations or effective dates of these awards.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).  Therefore, those matters have been resolved and are not in appellate status.


FINDINGS OF FACT

1.  The Veteran's service treatment records show that he experienced swelling of the ankles secondary to an allergic reaction to penicillin in October 1978, but gout was not diagnosed at that time.

2.  The record reflects a current diagnosis of gout.

3.  The competent and credible evidence of record does not relate the Veteran's gout to his military service.




CONCLUSION OF LAW

The criteria for service connection for gout have not been met.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  An August 2007 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records and VA medical treatment records have been obtained.  Private treatment records from Drs. Wong, Clevenger and Kennedy have been obtained and associated with the record.  The Veteran identified records concerning treatment for his feet and knees at Ft. Ord in 1982 and 1983, but the AMC's attempts to obtain these records were unsuccessful.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA).  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  VA examinations were conducted in December 2007 and February 2012 in connection with the present claim, and the reports of these examinations reflect that they are adequate for the purposes of adjudicating the Veteran's claim.  Specifically, the examination reports reflect that diagnoses and opinions which are congruent with the other evidence of record were rendered following a physical examination of the Veteran and a review of the record.  All offered opinions are accompanied by a complete rationale.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claims of service connection.  The Veteran was assisted at the hearing by an accredited representative from the California Department of Veterans Affairs.  The representative and the VLJ asked questions to ascertain the extent of any in-service injury and to determine whether the Veteran's current disability is related to his military service.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2).

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310).

Discussion

In the present case, the Veteran has asserted his claim to establish service connection for gout under the theories of direct and secondary service connection.  The evidence of record reflects a diagnosis of gout, and thus, element (1), evidence of a current diagnosed disability, has been demonstrated for both theories of entitlement.  

The Veteran's service treatment records do not reflect that gout was diagnosed.  However, an October 1978 treatment record reflects that the Veteran experienced swelling of the ankles secondary to an allergic reaction to penicillin.  Also, as noted in the Introduction, service connection for bilateral pes planus has been established.  Accordingly, element (2) has been demonstrated for both theories of entitlement.  

Concerning element (3), evidence of a nexus between the Veteran's gout and either a service-connected disability or an in-service disease or injury, the Board notes that the competent and credible evidence of record is unfavorable to the Veteran's claim.  

After a review of the record as well as an examination of and interview with the Veteran, the December 2007 VA examiner opined that the Veteran's gout was not the result of his service, noting that the Veteran did not receive in-service treatment for gout, and the initial diagnosis was made after the Veteran's separation from service.  There is no indication of any incident, injury, or treatment in service that could have caused the Veteran's gout to be diagnosed and first noted 23 year years after discharge.  The record reflects that the single incident in service of swollen ankles was an acute episode that resolved since there was no further mention of it or treatment for it in service.

The February 2012 VA examination report reflects that, after a review of the record as well as an examination of and interview with the Veteran, a different VA examiner opined that the Veteran's gout was not caused or aggravated by his service-connected bilateral pes planus.  In providing this opinion, the examiner noted that gout is caused by uric acid metabolism, a process which pes planus does not affect.

Further, there is no evidence of continuity of symptomatology concerning the Veteran's gout.  At the August 2011 hearing, the Veteran testified that his initial flare-up and diagnosis of gout was in approximately 2003; more than 23 years after his separation from service.  The private treatment records do not indicate a link to service and the 23 year between service and initial diagnosis weighs against a link to service.

His assertions are also not competent evidence of a relationship between his currently diagnosed gout and his military service or service-connected bilateral pes planus.  While the Veteran is competent to testify as to experiencing foot pain, which is capable of lay observation, he is not competent to render a medical diagnosis, or to opine as to whether his currently diagnosed gout is related to service or a service-connected disability.  See Barr, 21 Vet. App. at 307 (holding that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concluding that certain disabilities are not conditions capable of lay diagnosis).

Based on the nexus evidence of record and lack of evidence of continuity of symptomatology, the criteria for service connection for gout are not met, as the preponderance of the evidence is against the claim.  There is no doubt to be resolved, and service connection is not warranted on a direct or secondary basis.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for gout is denied.



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs