Citation Nr: 1320173 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-30 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for gout. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to March 1978, from December 1990 to May 1991, and from August 2004 to December 2005. This case comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a Travel Board hearing before the undersigned in August 2009. A transcript of the hearing is associated with the claims file. The case has previously come before the Board. In April 2010 and June 2011, the Board remanded the issues of entitlement to service connection for gout, a right knee disability, and a low back disability to the RO for additional development. In a September 2012 rating decision, the RO granted service connection for a right knee disability and low back disability. Accordingly, those issues are no longer before the Board. In January 2013, the Board again remanded the gout issue to the RO for additional development. The case has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file was also reviewed in preparing this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence of record establishes that the Veteran has gout in his feet. 2. The more probative evidence of record shows that the Veteran's gout of his feet is related to his active military service. CONCLUSION OF LAW Gout of the feet was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In April 2007, May 2010, and February 2011 VCAA letters sent to the Veteran, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim as well as what information and evidence must be submitted by the Veteran and the types of evidence that would be obtained by VA. The VCAA letters also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The claim was last readjudiction in a supplemental statement of the case issued in March 2013. The Board finds that VA's duty to notify has been met. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim. Specifically, the information and evidence that have been associated with the claims file includes private and VA treatment records. Also, the Veteran was afforded VA examinations. The Board finds that there is adequate medical evidence to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The Veteran was also provided an opportunity to set forth his contentions during the 2009 Board hearing. In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 23 Vet. App. 488 (2010). In regard to the first duty, the issues on appeal were addressed. In regard to the second duty, the development (medical examination) necessary to substantiate the claims was ordered by the Board. Thus, if error found, the Veteran was not prejudiced. See Bryant, 23 Vet. App. at 498-99 ("[A]lthough the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary-to include medical examination reports on each of these disabilities and any nexus to service-and there was no indication that the represented appellant had any additional information to submit. Accordingly, the 'clarity and completeness of the hearing record' was intact with respect to these disabilities and the purpose of § 3.103(c)(2) was fulfilled."). The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process. It does not contain any evidence not already in the paper claims folder or considered by the RO. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, providing testimony at the Board hearing. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Also, the Board finds that there has been substantial compliance with the directives of the January 2013 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection To establish service connection, the record must contain: (1) evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including gouty arthritis, will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. As noted above, the first element of direct service connection requires evidence of a current disorder. Here, a current diagnosis has been established. At a VA outpatient treatment visit in February 2007, the Veteran complained of gout in his left toe and foot. The Veteran was diagnosed with gout. In April 2008, the Veteran's private physician diagnosed him with gout. The August 2011 VA examiner found that the Veteran had inflammatory arthritis with the left great toe manifesting mild erythema and warm to the touch. At the February 2013 VA examination, the VA examiner reviewed the claims file, examined the Veteran, completed blood work on the Veteran, and then clarified that the Veteran had gout in his feet. Also, X-rays taken at the examination of the Veteran's feet showed bilateral degenerative joint disease, which supports the diagnosis of gout of the feet. Thus, the Veteran has satisfied the first element of service connection. The Board notes that the Veteran has also argued that he has gout in his ankles and right knee. Regarding gout of the ankles, the claims file does not contain any record of a diagnosis of gout pertaining to the ankles. The Veteran has been afforded several VA examinations, in which all of his joints were examined, and none of the VA examiners diagnosed the Veteran with gout of his ankles. Without this required proof of a current disorder, the claim for gout of the ankles necessarily fails. See Degmetich v. Brown, 8 Vet. App. 208 (1995), 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has a disorder existing on the date of application, not for a past disorder); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disorder is satisfied when the claimant has disorder at the time a claim for VA disability compensation is filed or during the pendency of the claim). In reaching this decision, the Board has considered the Veteran's arguments in support of his assertions that he has gout of his ankles. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis of gout of the ankles, this issue falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). As a layperson, it is not shown that he possesses the medical expertise to provide such an opinion. Gout requires specialized training for a determination as to diagnosis, and the physicians who have examined the Veteran have not diagnosed him with gout of the ankles. Thus, the claim for gout of the ankles fails, and no further discussion is required. Regarding gout of the right knee, the claims file does contain a diagnosis of right knee gout based on an X-ray showing degenerative joint disease of the right knee. See VA treatment record dated in March 2007. However, the Veteran was afforded service connection for his degenerative joint disease of the right knee in a rating decision dated in September 2012. In general, under the anti-pyramiding provision of 38 C.F.R. § 4.14 (2012), the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The United States Court of Appeals for Veterans Claims (Court) held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the claimant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the disorders is duplicative of, or overlapping with, the symptomatology of the other disorders. Here, the symptomatology is duplicative and overlapping. At the VA treatment visit, the Veteran was diagnosed with gout of the right knee based on his X-rays showing degenerative joint disease of the right knee. The Veteran is currently service-connected for degenerative joint disease of the right knee. These are not separate and distinct enough disorders. Gout is a form of arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5017, 5002. Therefore, the Board does not find a basis for establishing separate service connection for gout of the right knee. No further discussion of the right knee is necessary. In summary, the Board finds that the Veteran has gout of his feet for purposes of this claim, and the Board will now proceed to discuss the merits of the gout of the feet claim. As stated above, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's STRs are silent for documentation of the disorder. The records reveal no complaints or treatment related to gout or to his feet or toes. However, during the August 2009 Board hearing, the Veteran testified that he complained of, and was treated for gout during his third period of military service in Iraq. In this regard, the Board finds that the Veteran is competent and has credibly testified as to the symptoms he experienced and the events that occurred while he was stationed in Iraq. See Layno v. Brown, 6 Vet. App. 465 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The claims file also documents that the Veteran was prescribed and taking Maxzide, a medication for his hypertension, during his third period of military service. Thus, the Veteran has satisfied the second element of service connection. As previously mentioned, the third element of direct service connection requires evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinions of record concerning the relationship between the Veteran's gout and his in-service medication are positive. Specifically, on VA examination in August 2010, following a review of the claims file and a physical examination of the Veteran, the VA examiner determined that it was just as likely that the Veteran's in-service medication (Maxzide) might be related to his symptoms of gout. The examiner noted that the Veteran was on Maxzide, which the examiner noted has a loop diuretic component, to control his blood pressure. The Veteran was afforded another VA examination in August 2011. Following a review of the claims file and a physical examination of the Veteran, the August 2011 VA examiner found that the Veteran's gout was at least as likely as not (50/50 probability) caused by or a result of any aspect of the Veteran's period of service from August 2004 to 2005, including the medication Maxzide taken for his hypertension at that time. The examiner referred to the medical literature, which stated that the presence of other medical problems, to include gout, may affect the use of Maxzide. The literature cited by the examiner also reported that gout is the most common form of inflammatory arthritis in residuals of meningitis. Further, the literature indicated that secondary gout results from sequelae of an acquired disease or drug use. The literature stated that drugs associated with decreased urate clearance can precipitate gout attacks. Thus, in summary, the August 2011 VA examiner concluded that a review of the evidence-based literature indicates that the Maxzide medication can make gout worse. The Veteran was afforded another VA examination in February 2013. Following a review of the claims file and a physical examination of the Veteran, the February 2013 VA examiner pointed out that gout can be aggravated, in pertinent part, by certain medications. The examiner stated that Maxzide, a thiazide diuretic, is one of the medications that can cause elevated uric acid levels in the blood and lead to gout. The examiner noted that during the time of the Veteran's deployment (during his active duty), the Veteran was taking Maxzide for his hypertension. The examiner indicated that at the present time, the Veteran was still taking Maxzide. The examiner found that the Maxzide medication could be a contributing factor for the Veteran's elevated uric acid level of 8, as shown at the examination. The VA examiners clearly reviewed the Veteran's STRs and other evidence in the claims folder. They provided medical opinions that are supported by and consistent with the evidence of record. Thus, the Board finds that the Veteran's gout of his feet first manifested during his third period of military service from his use of the Maxzide medication. The claims file does contain negative nexus medical opinions, but the Board finds that these are not relevant to the discussion, as these opinions do not consider the effects of the Veteran's in-service medications on his development of gout in service. For all of these reasons, service connection for gout of the feet is warranted. ORDER Service connection for gout of the feet is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs