Citation Nr: 1307901 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 05-26 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for gout. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had 14 years active duty service ending in December 1973, including service in Vietnam. The issue on appeal was most recently before the Board of Veterans' Appeals (Board) in December 2010. The Veteran appealed the Board's December 2010 denial to the United States Court of Appeals for Veterans Claims (Court). By Memorandum Decision in February 2012, the Court vacated the part of the decision that denied service connection for gout and remanded the matter for proceedings consistent with its decision. This matter was remanded in September 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by taking appropriate action to provide notice compliant with 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(e); and providing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran appeared at Board hearing in October 2007. The hearing was intended to be a videoconference hearing, but due to technical problems, only audio transmission was possible. The Veteran was given the option of having the hearing rescheduled, but he elected to proceed with an audio only hearing. A transcript is of record. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, and is presumed to have been exposed to herbicide agents. 2. Gout was not manifested during the Veteran's active duty service or for many years thereafter, nor is gout otherwise related to such service, including herbicide exposure. CONCLUSION OF LAW Gout was not incurred in or aggravated by service nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice that addressed Agent Orange claims by a letter dated in November 2003. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant with notice in January 2005, March 2006, March 2008 and November 2008 subsequent to the initial adjudication. Altogether, the notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the January 2005, March 2006, March 2008 and November 2008 notices were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a July 2005 statement of the case (following the provision of notice in January 2005); and September 2007, October 2009 and January 2013 supplemental statements of the case (following the provision of notice in January 2005, March 2006, March 2008 and November 2008). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and VA treatment records; reviewed his Virtual VA file; obtained Social Security Administration (SSA) records; assisted the Veteran in obtaining evidence and afforded the Veteran the opportunity to give testimony before the Board at an audio conference hearing in October 2007. The Board notes that a VA examination is not warranted in this case. As discussed in detail later in this decision, the Board does not find the Veteran's statements regarding the claimed incident of gout credible, and he has not otherwise submitted any medical evidence suggesting a nexus to service. In its October 2008 remand, the Board noted that all available records were provided by SSA. The Board noted that the following medical records cited in the December 2005 SSA decision were not associated with the Veteran's claims file: a February 2005 internal medicine consultive examination from Dr. Jane Bunsic. Per the Board's October 2008 remand instructions, the RO contacted the Veteran to obtain consent to the release of medical records from Dr. Jane Bunsic. The Veteran's completed forms were received in November 2008, and the Veteran noted that she was employed at the Oakland Park VA medical facility. VA treatment records from that facility were obtained. However, there was not one entry from Dr. Bunsic reflected in the VA treatment records. Nevertheless, no additional development is necessary since the Veteran has provided all the information available regarding Dr. Bunsic. Additionally, by letter dated in October 2012, the Veteran was informed that a search for records from the VA medical facility in Cincinnati, Ohio shows a negative response and that the medical center did identify a veteran with the same first and last name, and middle initial, but different social security number. The Veteran responded by letter received in October 2012. Subsequently, in other responses received in February 2013, the Veteran signed a form and marked the appropriate line on another form to indicate than he had no further information/evidence to submit and requested that this case be returned to the Board for further appellate consideration as soon as possible. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. Laws and Regulations 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Lewinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Analysis Service treatment records are silent for any complaints of, treatments for, or diagnosis of gout. On reports of medical examinations from February 1962 to September 1970, there were no indications of gout. Further, February 1962 to January 1980 reports of medical history reveal that the Veteran checked the appropriate boxes to deny symptoms of gout-arthritis, swollen or painful joints, and foot trouble. There were no indications of gout. Nevertheless, the Veteran (even as a layperson) is competent to report symptoms of gout. However, after reviewing the totality of the evidence, the Board does not find the Veteran's assertion of gout beginning during service and continuing thereafter to be credible. The Veteran had been seen for other disorders in service. However, it does not appear to the Board that the Veteran reported such symptoms of his joints in service. This is contrary to his current assertions. There is no documentation of any complaints suggestive of gout. In fact, in reports of medical history in connection with examinations (both active duty and reserve) from February 1962 to January 1980, the Veteran checked the appropriate boxes to deny arthritis, swollen or painful joints, or foot trouble. If (as the Veteran now claims) he had symptoms of gout in service, it is reasonable to expect that he would have reported such to military medical personnel during these examinations. After all, the express purpose of the separation examination and form eliciting history from the Veteran was to document any ongoing service-related problems. However, he expressly denied such complaints. Moreover, clinical examination by medical personnel did not result in any notation of gout. Overall, the Veteran's current assertions regarding in-service symptoms are inconsistent with what he reported (or failed to report) while in service. This diminishes the credibility of his current statements. While not determinative by itself, it is also significant that there is no evidence of gout until June 1995, which is approximately 22 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, the one year presumption is not for application. Per the Board's March 2008 remand instructions, the RO had tried to obtain treatment records from the VA medical facility in Cincinnati, Ohio. In a November 2008 letter, the Cincinnati VA medical facility responded that there are no records of the Veteran under the social security number and birth date provided. However, the VA medical facility did note that there were records for a patient with the same first and last name, and middle initial, but different social security number. Per the Board's September 2012 remand, the Veteran was properly notified. By statement dated in October 2012, the Veteran asserted that the patient identified in the letter from the Cincinnati VA medical facility cannot be anyone other than he since the name and dates of treatment were the same. However, there is no indication that the Veteran had more than one social security number. Additionally, the Veteran has reported the onset of symptoms to different times. When the Veteran's original claim was received in March 2002, he reported experiencing gout in service from 1968 to 1969. However, a February 2002 letter from a VA physician in Oakland Park Clinic stated that the Veteran has had gout for nearly 30 years (which the Board would date the onset to 1972). A June 2003 VA treatment record shows that the Veteran has had gout attacks in 1973. Again, when the Veteran was asked at the hearing before the Board at the RO in October 2007 as to when he first experienced gout, the Veteran testified that he was treated approximately a year and a half after returning from Vietnam. A December 2005 SSA decision notes that a psychological consultive evaluation by Luis R. Zaldivar, Ph.D. in January 2005 showed that the Veteran complained about having gout for 25 years, which would date the onset to 1980. While these inconsistencies may understandably be due to fading memory over a great number of years, the end result is still a diminishment of the Veteran's credibility as to the factual history he has put forth. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is not warranted. The Board does not find the Veteran's statements recording the clamed incident of gout in service to be credible, and he has not otherwise submitted any medical evidence suggesting a nexus to service. The evidence of records fails to indicate that gout, first reported many years post service, had its onset in service or is otherwise related thereto. The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history, findings at service separation, and the absence of complaints or treatment for years after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. As for herbicide exposure, applicable law also provides that a veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C.A. § 1116; See also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for certain conditions. Here, exposure to herbicide agents is presumed given that service personnel records show that the Veteran served in Vietnam during the applicable time period. See 38 U.S.C.A. §§ 1116, 1154. However, gout is not included in the list of diseases associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). Nevertheless, if the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, as is the case here, the claimant may establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) at least theoretically, by submitting medical evidence of a nexus between the disease and exposure to herbicides during military service. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Court has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). However, there is no competent evidence suggesting any nexus to herbicide exposure during service. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs