Citation Nr: 1329116 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 07-19 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for gouty arthritis. 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from April 1992 to February 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, the Veteran appeared at a hearing before a Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. In January 2011, the Board remanded the claims for further development. In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. The claim of service connection for a bilateral hearing loss disability is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Gouty arthritis had onset in service. CONCLUSION OF LAW The criteria for service connection for gouty arthritis have been met. 38 U.S.C.A §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claim service connection for gouty arthritis, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service) and § 1131 (peacetime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran was not in combat, the provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The Veteran served on active duty from April 1992 to February 2006. The service treatment records show that the Veteran was treated for gout or gouty arthritis on several occasions. In June 2003, the Veteran was seen for chronic right great toe metacarpal phalangeal joint pain of several years' duration. It was noted that there was no known etiology and no history of trauma. History was positive for gout. The impression was probably gouty arthritis. In August 2003, the Veteran complained of pain in his right great toe. The assessment was probable gouty arthritis. In June 2004, records of the Mayo Clinic and St. Luke's Hospital included a history of gout. In July 2004, the problem list included gout. In August 2004, it was noted that the Veteran occasionally had gout in the toes. In November 2004, the Veteran complained of foot trouble, which was associated with gout. In December 2005 on VA examination, before the Veteran's separation from service, the Veteran stated that he had suffered from gouty since June 2003. The VA examiner found no evidence of gout. On a medical history form at the time of the February 2006 separation examination, the Veteran's complaints of foot trouble were associated with gout. After service, private and VA treatment records, including VA examination reports, show that the Veteran was treated for gout or gouty arthritis. In June 2006, the assessment was gout. The examiner stated that the attacks were localized to the right great toe, but otherwise, the complaints did not sound like gout. The examiner stated that the joint did not become red, hot, swollen, and exquisitely tender, and that the attacks would go away with one day of Indomethacin. In January 2007, the assessment was gout. In April 2007, the Veteran complained of a painful right great toe. The assessment was degenerative joint disease, probably due to first ray elevatus, and possibly gouty arthritis. In October 2008, the Veteran was seen for gout in the right great toe. It was noted that the Veteran was evaluated in the podiatry and orthopedic clinics, and that there was a question as to whether the Veteran had gout versus osteoarthritis. In March 2009, the Veteran was taking Indomethacin for gout three times a day. In June 2011 on VA examination the Veteran stated that gout began in 2002. It was noted that the Veteran had a known history of gout and that he had an attack in the right ankle area in 2010. In June 2011 on VA examination, the diagnosis was gout of the first metatarsophalangeal joint of the right foot. In March 2012, a VA physician stated that gout was less likely as not (less than 50 percent probability) incurred in service, because the Veteran did not have hyperuricemia. In May 2012, the assessment included gout. It was noted that the Veteran would continue with Indomethacin as the condition required. Analysis The evidence shows that the Veteran was treated for gout or gouty arthritis on several occasions in service. After service private, the Veteran continued to have treatment for gout or gouty arthritis. The June 2011, the diagnosis was post gout of the right ankle, resolved, without sequelae. Also in June 2011, the diagnosis was gout of the first metatarsophalangeal joint of the right foot. In March 2012 report, a VA physician stated that the Veteran's gout was less likely as not incurred in or caused by service. The physician maintained that all patients with gout had hyperuricemia at some point and that the Veteran's uric acid levels were normal. As the Veteran had gout, a chronic disease under 38 C.F.R. § 3.309, in service and after service, chronicity under 38 C.F.R. § 3.303(b) is established and service is warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (chronicity and continuity of symptomatology apply to a "chronic" disease listed under 38 C.F.R. § 3.309(a) and "noted" in service). ORDER Service connection for gouty arthritis is granted. REMAND On the claim of service connection for a bilateral hearing loss disability, the Veteran's service treatment records do not specifically show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. The records do indicate a possible loss of some hearing acuity from the time of the audiological evaluation at a September 1992 examination, as well as pre-service audiological evaluations pursuant to examinations in June 1990 and March 1991, respectively, as compared with the audiological evaluation at time of the February 2006 separation examination. Additionally, on a medical history form at the time of the February 2006 separation examination, the Veteran reported that he had hearing loss. The reviewing examiner noted that the Veteran had reduced hearing capacity after years of service. In September 2012 on VA audiological examination the Veteran reported that he was a helicopter pilot in service. The VA examiner stated it was at least as likely as not that the Veteran's claimed bilateral hearing loss disability was due to in-service noise exposure in service, but the Veteran did not meet the standards for a hearing loss disability as defined by 38 C.F.R. § 3.385. In May 2012, there was evidence of left ear hearing loss disability, but not a right ear hearing loss disability as defined by 38 C.F.R. § 3.385. As the record is insufficient to decide the claim, further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf records of treatment for a bilateral hearing loss disability since April 2012. 2. Afford the Veteran a VA audiology examination to determine: a). Whether the Veteran has a hearing loss disability under 38 C.F.R. § 3.385, and, if so, b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent) that the any bilateral hearing loss disability under 38 C.F.R. § 3.385 is related to the Veteran's noise exposure in service. c). Alternatively, whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent) that any current bilateral hearing loss disability under 38 C.F.R. § 3.385 was caused by or aggravated by service-connected tinnitus. The VA examiner is asked to consider that the term "aggravation" means a permanent increase in severity, that is, an irreversible worsening of hearing loss not due to the natural progress by the service-connected tinnitus as contrasted to a worsening of symptoms. The Veteran's file should be made available to the examiner for review. 3. After the above development has been completed, adjudicate the claim. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs