Citation Nr: 1308458 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 09-33 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for gout. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in October 2008. A statement of the case (SOC) was issued in July 2009, and the Veteran's substantive appeal was received in September 2009. In May 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. At the hearing, additional evidence was submitted accompanied by a waiver of RO consideration. FINDING OF FACT Gout was not manifested during the Veteran's active service or for many years after service, nor is gout otherwise related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The Veteran's gout was not incurred in or aggravated by his active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The Veteran's gout is not proximately due to or caused by, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. 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 Veteran pre-adjudication notice by a letters dated in November 2006 and February 2007. These notifications complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), identifying the five elements of a service connection claim; and with Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim (including the evidence necessary to substantiate a claim of secondary service connection) and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, 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 the Veteran's service treatment records (STRs), private treatment records, afforded him VA examinations in September 2007 and January 2011, afforded the him opportunity to give testimony at a May 2012 Board videoconference hearing, and obtained a November 2012 medical expert opinion. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and he and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Factual Background, Legal Criteria and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran has expressly asserted a secondary service connection claim, i.e., that his gout is the result of change in medication due to surgery for his service-connected prostate cancer. However, the Board is required to consider all theories of entitlement either raised by the claimant or by the evidence as part of the non-adversarial adjudication process. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). Hence, the Board will also address a direct service connection theory of entitlement. The Veteran's STRs are silent as to complaints of or treatment for gout. The post service medical evidence reveals that the Veteran underwent radical retropubic prostatectomy with bilateral pelvic lymph node dissection in January 2006 and first sought treatment for symptoms of gout in January 2006, shortly after undergoing prostate surgery. In a January 2007 statement, the Veteran stated that he has to take gout medicine for the rest of his life. He stated that he was not taking the water pill as a result of his blood presure being too low and the gout set in. These contentions were reiterated during his videoconference hearing. A January 2007 statement from Ross W. Armour, M.D., the Veteran's family physician, notes that the Veteran as been treated for gouty arthropathy which improved with anti-inflamatories since January 23, 2006. Dr. Armour further notes that around the time the Veteran was being treated for gouty arthropathy, he was also in a cycle of treatment for prostate cancer. An August 2007 statement from Eric E. Young, M.D., notes that the Veteran's right knee arthroscopy and meniscal tear appeared to be directly related to his preexistent diagnosis of gout. On September 2007 VA examination for gout, the examiner noted the Veteran's history of developing gout in the great toe of both feet one week following prostate surgery. The Veteran was treated with anti-inflammatories and placed on allopurinol. The examiner also noted that right knee arthroscopic surgery showed evidence of possible gout. The assessment was gout. The examiner opined that prostate cancer is not a cause of gout, gout is unrelated to the Veteran's prostate cancer or therapy thereof, and gout is not caused by the allopurinol. In an October 2008 statement, the Veteran's urologist, Michael Eddy, M.D., noted that the Veteran underwent a radical prostatectomy in January 2006, stressful situations are well known to exacerbate gout, and the Veteran had a gouty episode during his recovery. Dr. Eddy opined that, while there is no link with prostate cancer and gout, the Veteran's prostate cancer surgery obviously initiated the gout which has now been a chronic and painful situation. A January 2011 VA joints examination includes a diagnosis of gouty arthritis involving bilateral knees. Further, the examiner opined that it is less likely than not that the Veteran's stiffness in his knees is caused by or is a result of his service-connected prostate cancer. The examiner explained that a review of the literature indicates that there is no established connection between prostate cancer and gout as cause and effect. In a January 2012 letter, Dr. Eddy noted that the Veteran's gout symptoms still persist and were initiated at the time of the radical prostatectomy and concluded that his gout is at least as likely as not caused by his prostate surgery from 2006. In a May 2012 statement, Dr. Eddy explained that, while no rationale links gout to prostate cancer, in the Veteran's case, his gout was brought on by trauma resulting from the prostate surgery. In November 2012, the Board obtained a VHA (Veterans Health Administration) opinion from a VA rheumatologist with 18 years of practice, academic faculty appointments, and consultations for the evaluation and management of gout. Based on the evidence provided, the doctor opined that the only explanation for the existence of gout symptoms at this time (in 2012) would be related to a genetic or metabolic condition, unrelated to the Veteran's military service and unrelated to the prostate cancer or the treatment of prostate cancer. Based on a review of the claims file and updated medical literature, the doctor noted that, because the Veteran's gout developed in March 2006, after the January 2006 prostatectomy, the possibility of a causal relationship was reasonable from a chronological perspective. However, based on the relevant literature in PubMed as well as current textbooks (which reveal no causal relationship between prostate cancer and gout), the doctor opined that gout is not caused by prostate cancer. The doctor noted that it is plausible that the treatment of cancer, including prostate cancer, could lead to a transient flare of gout for a number of reasons, including as claimed by the Veteran (that he wasn't taking the water pill as a result of his blood pressure being to low). Further, any fluid shifts can lead to a transient flare of gout and the death of cancer cells after chemotherapy is a well known cause of transient flare of gout; however, this does not appear to have been a factor in this case. Referring to an October 6, 2008 clinical note that the Veteran's water pill was HCT (hydrochlorothiazide), the doctor noted that water pills such as HCT are a known cause of gout and explained that stopping the HCT in the perioperative period, as apparently was done in the Veteran's case, would more likely have lessened the risk of a gout flare than increased the risk. Thus, the doctor found no evidence to support a causal relationship between the flare of gout and the treatment of the prostate cancer. The doctor could not rule out the possibility, as noted by Dr. Eddy, that the stress of the acute event of surgery contributed to a flare of gout. However, the doctor concluded that there is no reason to think that a single flare of gout, induced by any of the causes mentioned above, would lead to the development of chronic gout, noting that a single flare of gout in every instance documented in the medical literature is a self-limited event. The doctor explained that that is why the current recommendations for the treatment of a single flare of gout do not include any chronic treatment and there are no chronic sequellae from a single flare of gout. The doctor further explained that, if the cause of the flare was something related to the prostate cancer or its surgery, then the gout should have resolved completely with no long term consequences. The doctor noted that lasting or long term consequences of gout, which are the basis of the Veteran's current claim, imply that the cause was something other than the prostate cancer, for example, due to a problem of metabolism that leads to elevated uric acid and chronic gout. The doctor stated that these metabolic abnormalities are the basis for most causes of gout and, more than likely, are the cause of gout in the Veteran. Thus, the doctor concluded that neither the prostate cancer nor the surgery or any of the Veteran's treatments for cancer in 2006 can explain the fact that he currently suffers from gout. Regarding the question of aggravation, the doctor concluded that the Veteran's gout had not been aggravated by his surgical treatment for and/or change in medications as a result of his service-connected prostate cancer. The doctor explained that, (1) it is plausible that the Veteran's gout in March of 2006 was aggravated by medications or treatment of prostate cancer, although the probability of this is less than 50 percent as the discontinuation of HCZ would be expected to lessen the likelihood of a flare of gout rather than increase it and (2) there is no possibility of the treatment of prostate cancer in 2006 aggravating a Veteran's symptoms today (in 2012). The doctor further exaplained that any factor that could have conceivably aggravated gout in 2006 would long since have dissipated. The Board notes that the present diagnosis of gout is not in dispute. Gout was not noted in service and there is no evidence (or indeed allegation) that it is somehow directly related to the Veteran's service. Consequently, service connection for the Veteran's gout on the basis that it was incurred or aggravated in service is not warranted. As there is no competent evidence that gouty arthritis was manifested in the first postservice year, service connection for such disability on a presumptive basis is also not warranted. Turning to the question of secondary service connection, it is shown that the Veteran has gout and that service connection has been established for prostate cancer. To warrant service connection on a secondary basis, it must be shown that the service-connected prostate cancer caused or aggravated the gout. There is conflicting medical evidence regarding this question. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the rationale for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. The evidence that tends to support the Veteran's claim in this matter consists of opinions from Dr. Eddy, the urologist who treated him for prostate cancer, and the Veteran's contentions. Dr. Eddy has stated that the Veteran's gout is at least as likely as not caused by his prostate surgery from 2006. Although he has provided an explanation stating that the gout was brought on by the trauma of surgery, Dr. Eddy does not support this conclusion with an analysis the Board can weigh against any contrary opinion; thus, the Board finds such opinion lacking in probative value. The Veteran's own assertions that there is a nexus between his gout and change in medication after prostate surgery are not competent evidence as to the underlying question in this case. The etiology of an insidious process such as gout, i.e., whether or not it is related to treatment for another disease (as here), is a complex medical question that requires medical knowledge/training. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran is a layperson, and lacks the training/expertise to offer a probative opinion in the matter. The Board must therefore look to the medical evidence. The evidence that is against the Veteran's claim consists of the opinions of the September 2007 and January 2011 VA examiners, and the November 2012 opinion of the VHA rheumatologist. Both VA examiners opined that the Veteran's gout was not caused by prostate cancer and the September 2007 examiner also concluded that the Veteran's gout was not cause by the medication the Veteran had been prescribed. However, the September 2007 and January 2011 opinions have diminished probative value because they are not adequately supported with an analysis the Board can weigh against any contrary opinion and they do not address the opinions provided by Dr. Eddy. On the other hand, the VHA rheumatologist did review the opinions already of record (namely the opinions of Dr. Eddy, the two VA examiners, and the Veteran's contentions) and noted that, although it is plausible that the Veteran's gout was caused by change in medication or trauma from the prostate surgery; such factors would result in a transient flare of gout, which is not the case for the Veteran. The doctor explained that stopping the Veteran's medication prior to the prostate surgery likely reduced his risk of gout rather than increased it, as he claims. Similarly, the doctor explained that the flare of gout due to the trauma of surgery, as suggested by Dr. Eddy, would have a been self-limited event and would not have led to the development of chronic gout. The doctor concluded that if the gout was due to or aggravated by the prostate cancer or its surgery, it would have resolved completely with no long term consequences. The opinion of the VHA rheumatologist is based on a complete review of the Veteran's claims file, familiarity with the clinical data therein, and review of the medical literature. As the VA examiner is a rheumatologist (who by virtue of training and recognized level of expertise is most qualified to provide an opinion in the matter), provided an opinion supported by detailed findings and a better explanation of the rationale, and considered possible alternatives for the etiology of the Veteran's gout, his opinion merits the greater probative value. Moreover, Dr. Eddy's opinion seems to be based in large part on the fact that the gout manifested within a very short period of time of the prostate surgery and treatment. Although this is certainly a reasonable observation, the fact that the gout manifested at that time has been persuasively explained by the VHA examiner. The opinion of the VHA examiner addresses all pertinent items of evidence, both pro and con, and sets forth a clear, and persuasive discussion of the medical principles involved. In sum, the preponderance of the evidence is against service connection for gout. In such a situation, the benefit of the doubt doctrine does not apply and the claim is denied. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs