Citation Nr: 1317262	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  09-10 172	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for gout of the lower extremities.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1984 to June 1989.  He had other service in the Reserves.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  


FINDING OF FACT

The Veteran's gout did not manifest during service and is not causally or etiologically related to service.  


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The record shows that through a letter dated in July 2008, the VCAA notice requirements were satisfied.  

The Board also finds that there has been compliance with the VCAA assistance provisions.  The record in this case includes service treatment records, VA treatment records, private treatment reports, and lay evidence.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c).  No additional pertinent evidence has been identified by the Veteran.

In this decision, the Board finds that there was no in-service injury or disease, including no chronic in-service symptoms of disability of gout to which current gout may be related.  There is also no competent or credible evidence otherwise indicating current disability is related to service.  For his part, the Veteran has only offered his own conclusory, generalized statements linking the claimed disability to service.  Accordingly, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for gout, and none was provided.  See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim").

Service Connection - Laws and Regulations

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection - Analysis

The Veteran has a current diagnosis of gout.  Active service treatment records show one complaint of toe pain, which was caused by a coral stone that had become imbedded in the Veteran's second toe when in Guam in 1985.  Later routine blood work performed in 1988, showed normal uric acid values, and on the Veteran's June 1989 separation report of medical history, the Veteran specifically noted no current or past arthritis, rheumatism, bursitis, bone, joint, or other deformity, or foot trouble.  On the corresponding medical examination, the examiner noted the Veteran's feet and lower extremities were clinically normal.  

In 1990, the Veteran submitted an application for VA compensation benefits, (service connection for a hernia).  He did not include a claim for gout or gout symptoms.  After that, routine blood work performed in 1992, showed normal uric acid levels, and in March 1992, and December 2001 physical examinations associated with his Reserve service, revealed the Veteran's feet and lower extremities as clinically normal.  At the same time, the Veteran reported no past or present arthritis, rheumatism, bursitis, or foot trouble.  During an April 2002 five year Reserve physical, the Veteran again noted no history or current symptoms of arthritis, rheumatism, or bursitis, foot trouble (to include pain, corns, bunions, etc.), impaired use of legs or feet, or swollen or painful joints.  The examiner at the time found the Veteran's lower extremities and feet to be clinically normal.  

It was not until May 2005, when records show the Veteran complaining of gout in the left great toe.  At that time, he reported he had been experiencing attacks of gout every 2 years, but did not relate when they commenced.  Medical records dated thereafter, including X-rays establish the diagnosis of gout, but none suggest there is any link between the condition and service.  

The Veteran contends he acquired gout in active service and has had symptoms of it since that time.  He is not shown to possess any medical expertise and therefore any medical opinions he asserts are not of significant probative value.  He is competent to report his symptoms, but his current assertions of experiencing chronic gout symptoms beginning in service are contradicted by the medical reports from service and the ensuing years, as described above.  Contemporaneously recorded documents are considered to be a more accurate reflection of the Veteran's condition at that time, than a history he provides more than a decade after the events about which it relates.  Therefore, those records are accorded more probative value.  The Board is thus left with a record that fails to show any in-service disease or injury to which the claimed disability is competently indicated to be related, or which shows chronic symptoms of gout since service.  In view of this, a basis upon which to establish service connection for gout has not been presented. 

As the preponderance of the evidence is against the claim for service connection for gout of the lower extremities, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for gout of the lower extremities is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

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"). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  





In June 2005, the Veteran complained of pain in the first MPJ of the left foot.  He stated that he has had numerous attacks of gout in his joint.  The examiner diagnosed probable acute gout.  X-rays were taken of the left foot, which showed gouty changes in the first IPJ.  The examiner diagnosed gout.  A May 2005 treatment record shows complaints of gout in the left great toe with attacks every two years or so.  In September 2005, the Veteran again complained of pain in the first MPJ of the left foot.  He diagnosed probable acute gout and probable pseudo-gout.  A few days later, the Veteran noted pain in his left foot after playing softball the weekend prior.  In August 2006, the Veteran complained of pain in the right foot.  He was diagnosed with probable acute gout.  In July 2007, he noted pain and swelling of the left ankle.  

In the December 2008 notice of disagreement, the Veteran asserted that hyperuricemia (uric acid in the blood) sometimes goes undiscovered.  He reported joint pain since the mid 1970s.  On the March 2009 substantive appeal, the Veteran stated that he acquired gout on active duty.  He noted that his body produces numerous amounts of uric acid and that the shoes he was issued in the Navy would cause pain, swelling, inflammation, and tenderness of the feet.  

In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience symptoms of gout during service.  Further, the Board concludes that his assertions regarding the onset of his gout are not credible. 

The Board finds that the Veteran's more recently-reported history of continued symptoms of gout since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms of foot pain or other joint problems.

Specifically, the service separation examination report reflects that the Veteran was examined and his feet and lower extremities were found to be clinically normal.  His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later).  

Additionally, the Veteran asserts that his high uric acid went undetected, when records show that the Veteran actually received laboratory blood testing in service.  These tests both showed normal levels of uric acid in the blood.  

The Board notes that the Veteran sought treatment for a myriad of medical complaints in service and since discharge from service.  Significantly, during that treatment, when he specifically complained of other problems, he only noted foot problems once, when a coral rock injured his foot.  He did not report any instances of gout for several decades after separation from service and multiple physical examinations and histories showed no complaints or findings of gout.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

The Veteran filed a VA disability compensation claim for service connection for a hernia disorder in 1990, shortly after service, but did not claim service connection for gout or make any mention of any gout symptomatology for many years after.   
  
Finally, he did not claim that symptoms of his disorder began in service until he filed his current VA disability compensation claim.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes.  See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).

The Board has weighed the Veteran's statements as to onset and recurrence of symptoms 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 and findings at service separation, the negative findings for years after service, and his previous statements made for treatment purposes.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of onset during service with recurrence after service.

There is nothing more than the Veteran's conclusory statements regarding causation to support this theory of entitlement.  As seen above, the Veteran has been found not credible regarding the onset of his gout.  Additionally, he is not shown to possess any expertise as might permit him to competently opine on this subject.  Therefore, this contention is not probative for purposes of establishing entitlement to the benefit sought, nor is it even sufficient to trigger the duty to obtain a medical opinion.  Thus, with no probative evidence of a disease or injury in service to which current disability may be related, a basis upon which to establish service connection has not been presented and the appeal is denied.  














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