Citation Nr: 1317870 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-50 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for gout. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1991, with an unverified period of active service prior to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded this matter for additional development in January 2013. FINDING OF FACT The evidence of record does not demonstrate that gout was manifested during active service, manifested to a compensable degree within one year following separation from service, or was developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for gout have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Those requirements have been fulfilled by information provided to the Veteran in a March 2008 letter from the RO, prior to the rating decision on appeal. That letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also advised the Veteran as to how VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on the party attacking the agency determination). The Board finds that the notice requirements have been met. VA also has a duty to assist a veteran in the development of his claim. That duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In compliance with its duty to assist, the RO associated the Veteran's service medical records and identified VA and private treatment records. The Veteran was also given, but declined, the opportunity to provide oral testimony in support of his appeal. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained, except for the following. The Board notes that the Veteran sought private treatment records from Dr. A.F. at the Francis Family Practice from 1991 to the present, but that only records from 2001 and from 2004 to 2008 were associated with the claims file. The Veteran has not indicated that he received treatment for his gout from any other private provider from 1991 to 2004. In addition, the Veteran did not respond to VA's March 2013 letter, which asked the Veteran whether he had received any treatment for his gout since August 2010 from any VA medical facility. VA's duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, the Board finds that VA has substantially complied with the Board's March 2013 remand instructions on developing documentary evidence. D'Aries v. Peake, 22 Vet. App. 97 (2008). While it is unfortunate that some records may be unavailable, this appeal must be decided on the evidence of record. A VA examination was undertaken with respect to the claim on appeal. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence, therefore, is sufficient for an adequate determination of the issue on appeal. Thus, the Board finds that there has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from the date of termination of service, the chronic disease shall be presumed to have been incurred in service even though there is no evidence of that disease during the period of service. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Arthritis is a chronic disease. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. The Veteran seeks service connection for gout. In his written submissions, the Veteran contends that the boots he wore on the concrete floors of the warehouse where he worked in service caused or contributed to his gout disorder. According to the Veteran's service separation form, the Veteran's primary military occupational specialty was in material storage and as a distribution supervisor. The service medical records do not show treatment for, or a diagnosis, of gout. However, there are indications of complaints about his joints. January 1978 service treatment records show that the Veteran was seen for his left hand complaints after he struck another individual with his left hand. He had lacerations and abrasions on his fourth and fifth digits with minimal swelling and some pain on movement. Flexor tendons were intact. The assessment was a traumatic left hand and post traumatic edema. A February 1978 service treatment record shows that the Veteran dropped a hand truck on his right foot on the immediate right side of the instep. The X-ray report showed no fracture and soft tissue swelling only. The impression was a bruise or strain on the dorsal aspect of the right foot. A March 1978 service X-ray noted a normal left ring finger with a swollen joint. June 1978 service treatment records show an injury to the left great toe one week before. The toe was tender with mild swelling in a joint. An X-ray showed no fracture or dislocation of the left great toe and a swollen fourth finger of the left hand. A November 1978 service X-ray showed a fracture of the distal fifth metacarpal in the left hand with early callus formation. There was also a suggestion of pes planus in the left foot when the ankle was x-rayed. On a July 1986 report of medical history the Veteran indicated that he had swollen or painful joints. The examiner noted cramps in both legs since childhood after strenuous exercise, but that no medical treatment was required. June 1991 service treatment records show that the Veteran was seen for aches and pains and stiffness in his right hand and right foot. No significant bony or articular abnormalities were seen in the right hand and in the second and third digits. Arthritis was assessed. Examination of the right foot and great toe showed a bunion deformity with hallux valgus with no other significant findings. A July 1991 podiatry clinic record noted a one and one-half year history of arthralgias in both hands at the metacarpophalangeal joints with pain and stiffness. The Veteran noted that his symptoms increased with barometric pressure. There was a family history of arthritis with his mother. Examination showed full range of motion for the hands and X-rays were negative. According to a March 2013 VA examiner, the Veteran's service treatment records did not show elevated uric acid levels. The Veteran's July 1991 discharge examination noted no abnormalities of the musculoskeletal system but for limited range of motion of joints of the fourth and fifth fingers of the left hand, apparently due to a long-ago accident, and slight angulation of a joint in the right great toe. On his contemporaneous report of medical history the Veteran checked the "yes" box when asked whether he ever had swollen or painful joints or arthritis or foot trouble. The examiner noted that the Veteran had swollen and painful fingers on both hands since 1990, which the Veteran said were symptoms of arthritis. Foot trouble for both feet was explained as bunions and problems with the arch and balls of his feet. After separation from service, a May 2004 private laboratory report showed uric acid within normal levels. A September 2007 private medical record noted that the Veteran had been diagnosed and treated in service with gout when he presented with complaints of right foot pain. The location of the discomfort was primarily the distal foot, dorsal surface, plantar surface, and toes and did not radiate. The pain initially began two days before with no precipitating event or injury identified. Pain was described as constant, of moderate severity, throbbing, and aching. It increased with weight bearing. The Veteran denied associated symptoms. An October 2007 private medical record showed that the Veteran was treated for right foot pain. It was noted that he was diagnosed with gout more than three to four years before with current treatment. He also complained of a painful bunion on the right foot and it was noted that he wore steel toes for working. A June 2008 private medical record noted that the Veteran's mother also had gout. An August 2009 VA medical record noted that the Veteran's gout was asymptomatic. A May 2010 VA medical record noted that the Veteran complained of a past medical history of gout. The Veteran underwent a VA examination in March 2013. The VA examiner diagnosed gout. The Veteran told the examiner of a long history of gout first diagnosed after active duty, possibly in 1994. According to the report of examination, the Veteran recalled his first symptoms involving the great toe while on active duty when he was possibly 39 or 40 years old. He told the examiner that he reported to sick call one or more times with pain and swelling. He described his pain as exquisitely tender that would not even allow a shoe or sock on the foot. He said that he had injured his toes on several occasions and was seen for right hand pain right before discharge. It was also noted that his family history was positive for gout in his mother and all his male siblings. He was currently being treated for gout with uloric acid by his private provider. His last attack was eight months before and his attacks tended to involve the great toes and elbows. Triggers were given as shrimp, meat gravy, and beer (now omitted from his diet). The March 2013 VA examiner noted that the Veteran needed continuous medication (uloric) for the arthritic condition, but did not have anemia. The March 2013 VA examiner opined that the Veteran's diagnosed gout disorder was less likely than not related to any inservice injury, event, or illness. The examiner explained that gout is a metabolic disease that most often affects middle aged to elderly men and post-menopausal women. The examiner also noted that gout had a strong genetic link making it essentially a constitutional disease. The examiner also explained that there was nothing in the medical literature to suggest that gout was worsened by mechanical force or excessive use or ill-fitting boots, so permanent aggravation of its natural course could not be linked to service. The VA examiner also noted that gout results from an increased body pool of urate with hyperuricemia with an age at onset of typically 40 to 60. The examiner noted that the Veteran was about 40 at the time he was discharged from active duty and in that sense he would fit the clinical picture. However, the onset is generally acute and typically only one joint is affected initially although polyarticular acute gout can occur in subsequent episodes. The examiner stated that the gold standard for determining the diagnosis is joint aspiration that demonstrates the needle like urate crystals, but that was not done at any point of the Veteran's treatment. The examiner also noted that treatment records from 1994 could not be located. The examiner also noted that there was no evidence that the first gout event, which typically happens at night with dramatic joint pain and swelling, occurred while the Veteran was on active duty as the Veteran himself stated that the attacks were so severe that he was unable to walk or put his shoe on. The VA examiner also noted that triggers include dietary excess, trauma, surgery, excessive ethanol ingestion, hypouricemic therapy, and serious medical illness. However, the examiner noted that the Veteran's 1989 DUI incident did not appear to have triggered joint symptoms and a hand evaluation in 1991 did not show any swelling. The examiner stated that the orthopedic evidence at that time was obvious in a lack of acute gout symptoms. The VA examiner also noted that uric acid levels are always elevated at some point in a gout patient but that she was unable to locate elevated uric acid levels in any record. While X-ray studies might only indicate soft tissue swelling early in the disease, the soft tissue swelling noted on some of the Veteran's X-rays were in conjunction with trauma or injury. While there was at least one episode of unilateral great toe pain with swelling with no prior trauma, erythema and warmth did not develop and that was attributed to symptomatic hallux valgus. No uric acid testing was performed during his period of active duty. The VA examiner stated that she would have expected a uric acid level to be drawn since gout of the great toe has such florid symptoms. Further, she found no light duty slips for no weight bearing due to toe or foot pain not related to other pathology which she thought would seem likely in view of the extreme pain associated with gout of the great toe. Therefore, the March 2013 VA examiner concluded that while it might be medically feasible that the Veteran had symptoms of gout while on active duty, she believed it was not more likely than not that the Veteran's initial gout presentation was either on active duty or within the presumptive one year period. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that any current gout disorder was incurred as a result of any established event, injury, or disease during active service. The Board notes that there is no medical evidence of diagnosed gout during service. Medical records associated with the claims file, to include a private record dated in October 2007, do not show a diagnosis of gout until 2003 to 2004, or approximately 12 to 13 years after discharge from service. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In view of the period of time following service without a showing of a gout disability, the evidence is against a finding of continuity of symptomatology, and that weighs against the Veteran's claim. In view of the medical evidence of record, there is no persuasive evidence of continuity of symptomatology since service, and that also weighs against the Veteran's claim. The Veteran told the March 2013 VA examiner that he was first diagnosed with gout after service in approximately 1994. Moreover, there is no persuasive medical evidence of record that provides a nexus to active service. The Veteran has not provided any competent medical evidence to demonstrate that any current gout disorder was caused by or was a result of his period of service. The March 2013 VA examiner did not suggest such a connection in that examination and a review of the claims file has not disclosed that any private physician has suggested that gout manifested during service or within one year following service, or is related to service. While a September 2007 private medical record noted above that the Veteran had been diagnosed and treated in service with gout, that assertion appears to have been based on the Veteran's narrative when he presented with complaints of right foot pain and was not based on any review of medical evidence from service onwards. The March 2013 VA examiner's opinion is shown to have been based upon a thorough review of the evidence and an interview with the Veteran. The VA examiner's opinion is persuasive that the Veteran's gout is less likely than not due to service. In essence, there is no competent medical opinion of record etiologically relating the Veteran's currently diagnosed gout to events in his military service. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted. Hickson v. West, 12 Vet. App. 247 (1999). In addition, presumptive service connection is not warranted for the Veteran's claim for service connection for gout because there is no medical evidence of record to show a diagnosis of gout within one year of the Veteran's separation from active service in September 1991. 38 C.F.R. §§ 3.307, 3.309 (2012). In reviewing the Veteran's claim the Board has reviewed his written statements and those of his representative. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). The Board recognizes that the Veteran, as a layperson, is competent to report that he experienced symptoms of joint pain in service that required medical treatment. In addition, he is competent to report symptoms of joint pain after service, as those symptoms are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). However, his statements related to inservice gout cannot be considered credible or persuasive in view of the findings of the March 2013 VA examiner and the contrary evidence shown in service treatment records, including his July 1991 discharge examination. There are many causes of joint pain and the Veteran is not qualified to distinguish gout from other causes of joint pain. The March 2013 examiner stated that the diagnosis of gout was based on taking uric acid levels and extracting crystals from the affected joint, which is a medical procedure. Therefore, the diagnosis of gout is not capable of lay diagnosis. To the extent that the Veteran has related his current symptoms of gout to his period of active service, the Veteran has not been shown to have the expertise to provide a competent opinion regarding the incurrence or aggravation of his current gout disability. Thus, his lay assertions, standing alone, are insufficient to support a grant of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report the presence of joint pain problems during service, and the continuity of symptoms after service, he and his service representative are not competent to diagnose or to relate gout to his active service. Questions of medical diagnosis and causation are within the province of medical professionals. Jones v. Brown, 7 Vet. App. 134 (1994). As a lay person without the appropriate medical training or expertise, the Veteran and his representative simply are not competent to render a probative opinion on medical matters. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997) (lay person is generally not capable of opining on matters requiring medical knowledge). Consequently, the assertions of the Veteran and his representative in this matter do not constitute persuasive evidence in support of the Veteran's claim. Because of the lack of competent evidence in support of the Veteran's claim, the Board finds that the preponderance of the evidence is against a finding that the Veteran has gout that was incurred as a result of his period of active service. The Board further finds that the preponderance of the evidence is against a finding that gout manifested in service, or to a compensable degree within one year following separation from service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for gout and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for gout is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs