Citation Nr: 1333153 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-29 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for gout. 2. Entitlement to service connection for hypertension to include as due to the service connected diabetes mellitus Type II and exposure to herbicides. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD). 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for a disability of the upper bilateral extremities to include peripheral neuropathy, radiculopathy and carpal tunnel syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from July 1969 to February 1971, November 1990 to May 1991, October 1991 to February 1992, April 1992 to August 1993, and from April 2004 to November 2005. He had service in the Republic of Vietnam and has been awarded the Purple Heart. The Veteran had additional service with the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in New Orleans and Gretna, Louisiana. The Board notes that the United States Court of Appeals for Veterans' Claims held in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In regards to the claim for a bilateral upper arm disability, the Veteran initially claimed service connection for peripheral neuropathy as due to the service connected diabetes mellitus. However, the record shows diagnoses of carpal tunnel syndrome and radiculopathy. Accordingly, and in consideration of the holding in Clemons, the Board has recharacterized the issue on appeal as reflected in the title page of this decision. In a rating decision of February 2013, the RO granted service connection for bilateral hearing loss and tinnitus. As the requested benefit has been granted, the issues are no longer on appeal. The Board has reviewed the Veteran's Virtual VA file and finds there are no additional relevant records contained therein. The issues of entitlement to service connection for sleep apnea, hypertension, GERD and a disability of the bilateral upper extremitates are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, gout on the feet was first manifested in active duty service. CONCLUSION OF LAW Gout in the feet was incurred in service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In the instant case, since the Veteran's claim for gout is being granted, any deficiencies with regard to VCAA are harmless and nonprejudicial and VCAA analysis is not required. Legal Criteria and Analysis Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to prevail on the issue of service connection, there must be competent evidence of (1) a current disability; (2) 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 disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). At the outset, the Board notes that the RO has found that the Veteran's service treatment records are incomplete. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). After having carefully reviewed the evidence of record, the Board finds that the evidence supports the award of service connection for gout in the feet. The records shows a diagnosis of gout in the feet. Therefore, the question is whether the diagnosed gout is related to service. In a January 2007 VA examination, the examiner noted that while activated and deployed to Iraq, the Veteran began experiencing recurrent pain to the left foot at times associated with swelling and not associated with trauma. The symptoms would last 2-3 days and then recur. Since returning from Iraq, the Veteran has continued to have flare-ups of the same symptoms in Iraq and now with similar symptoms in the right foot. Flare-ups have increased in frequency. The examiner diagnosed the Veteran with gout. To the question as to whether the disease r injury occurred during active service, the examiner replied yes. While the examiner did not provide a narrative to the opinion, the examiner did state that the gout started in active service. There is no other opinion of record. The examiner considered the reported symptoms, examined the Veteran and considered the claim file. The Board acknowledges that the VA examiner appears to rely primarily on the Veteran's reported history. In this regard, the Board notes that a lay person is competent to describe what they observe. See Layno v. Brown, 6 Vet. App. 465 (1994). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In this regard, the Board notes that the Veteran reported at the VA examination that he first experienced problems with pain and swelling on his feet during his service in Iraq. This would last 2-3 days and subside to then recur a few weeks later. The Veteran is competent to report this symptomatology. Moreover, while service treatment records do not show complaints of swelling on his feet, an undated routine medical examination report from his service in the National Guard does show the Veteran reported he suffers from gout. VA outpatient treatment records note a history of gout and continued treatment for gout. In considering the evidence above, the Board finds the Veteran's assertions to be credible. Indeed, there is nothing in the record to question the Veteran's reports of symptomatology in service. This is especially so considering the proximity of the Veteran's claim to separation from active duty, one year, and the notation of gout in the National Guard treatment records. Therefore, the Board accepts the Veteran's reports of swelling and pain in his feet in service. Having found the Veteran's assertions credible, the Board finds that the evidence supports a finding of service connection. The only medical opinion of record relates the Veteran's symptoms in active service, which have been found to be competent and credible, to his current diagnosis of gout. There is nothing to contradict this evidence. The opinion is competent and reliable. Accordingly, service connection for gout of the feet is warranted. ORDER Service connection for gout of the bilateral feet is granted. REMAND The Veteran is seeking service connection for hypertension to include as due to diabetes mellitus and exposure to herbicides, a disability of the upper bilateral extremities, GERD and sleep apnea. After a review of the claim file, the Board finds that additional development is needed prior to deciding the claim. In regards to the claim for service connection for hypertension, the Veteran, in a statement of September 2007, claimed that his hypertension was caused by exposure to herbicides during his service in Vietnam. The Veteran's DD-214 of his first period of active duty confirms the Veteran served in the Republic of Vietnam. Therefore, exposure to herbicides is conceded. The Veteran was afforded a VA examination in January 2007. At the time, he was diagnosed with essential hypertension. No diabetic nephropathy was found. The examiner opined that the hypertension was not caused by the service connected diabetes mellitus as hypertension had preceded the diabetes. The examiner further stated that hypertension was not aggravated by diabetes mellitus. However, a rationale for this opinion, as to aggravation, was not provided. Accordingly, the aggravation opinion is inadequate. Moreover, an opinion as to whether the hypertension is due to exposure to herbicides has not been obtained. On remand, a new medical opinion must be obtained. In regards to the claim for GERD, treatment records of March 2004 note the Veteran complained of acid reflux. At a January 2007 VA examination, the Veteran was diagnosed with GERD. It was noted that the Veteran had a diagnosis of GERD since the mid 1990s and an upper GI of 1997 showed diagnoses of acid reflux and hiatal hernia. It was further noted the Veteran reported he still experiences bloody stools with heavy training and with lots of lifting, straining or marching. A medical opinion as to the etiology of GERD was not requested or provided. Moreover, it is noted that a March 1996 report of Medical history notes complaints of indigestion for a year. An opinion as to the etiology of the GERD should be obtained. In regards to the claim for a disability of the upper bilateral extremities, the Veteran is currently service connected for a cervical spine disability and diabetes mellitus type II. In December 1998, he was diagnosed with carpal tunnel of the bilateral upper extremities. In January 1999 the Veteran was noted to have possible radiculopathy associated with C5-6 myotoma. In May 2004 he complained of radiating pain from the neck down the left upper extremity. In June 2005, he was noted to have cervical radiculopathy. At the January 2007 VA examination, the Veteran complained of numbness and paresthesias of the right upper extremity. At a VA examination of October 2007, he was diagnosed with carpal tunnel syndrome of the right arm. An opinion as to etiology was not requested or provided. Given the facts as delineated above, a medical opinion as to etiology is needed prior to deciding the claim. In regards to the claim for service connection for sleep apnea, the Board notes the record contains a diagnosis of sleep apnea. VA outpatient treatment records of February 2010 show a diagnosis of sleep apnea/anxiety and records show the veteran has been given a CPAP machine for treatment. The Veteran has argued that his sleep apnea started while serving in Iraq. Moreover, in a December 2010 statement, he stated that he has been treated for sleep apnea at the VAMC in Houston, Texas and Alexandria, LA. A review of the records shows that VA outpatient treatment records from the VAMC in Alexandria, LA have been obtained and associated with the claim file. A notation of January 2010 notes a sleep study and references documents attached; however, no sleep study is of record. If a sleep study was conducted, the same should be obtained and associated with the claim file. Furthermore, there are no VA outpatient treatment records from Houston, Texas VAMC. These records must be obtained. Finally, the Veteran has not been afforded a VA examination as to his sleep apnea. In this regard, the Board notes that service connection is now in effect for posttraumatic stress disorder (PTSD) and sleep disturbances have been noted associated with his PTSD. An examination must be conducted to determine if there is any sleep disorder separate from the symptomatology related to PTSD and to determine the etiology of the same. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the dates of treatment for sleep apnea, and any other of the claimed disabilities at the Houston, Texas VAMC. All of the records for the identified dates should be obtained an associated with the claim file. 2. After the above requested development has been completed, the Veteran should be scheduled for a VA examination to determine the nature and etiology of any sleep disorder he may currently have. The claim folder should be made available to the examiner for their review and consideration. The examiner should be granted access to the Veteran's Virtual VA file. The report must note that the paper and Virtual claim files were reviewed. The examiner should identify any and all sleep disorders the Veteran currently has. Specifically, the examiner should confirm a diagnosis of sleep apnea. To the extent possible, the examiner should distinguish any sleep disorder from the symptomatology associated with PTSD. For each sleep disorder diagnosed, the examiner should provide an opinion as to whether the diagnosed disability is related to any of the Veteran's periods of active service, to include his service in Iraq. The examiner should consider the Veteran's lay statements in providing his opinion. A complete rationale for nay opinion rendered must be provided. 3. The Veteran should be scheduled for an appropriate VA examination to determine the current nature and etiology of any disability of the bilateral upper extremities. All appropriate tests should be conducted. The claim folder should be made available to the examiner for their review and consideration. The examiner should be granted access to the Veteran's Virtual VA file. The report must note that the paper and Virtual claim files were reviewed. The examiner should identify all of the currently found disabilities of the upper bilateral extremities, to include whether the Veteran currently has or has had at any point during the appeal period, carpal tunnel syndrome, peripheral neuropathy or radiculopathy. For each disability diagnosed, the examiner must provide an opinion as to whether the disability was caused by or aggravated beyond its natural progression, by any period of active service, or by a service connected disability to include diabetes mellitus and/or degenerative disc disease of the cervical spine. A complete rationale for any opinion rendered must be provided. 4. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his GERD. The claim folder should be made available to the examiner for their review and consideration. The examiner should be granted access to the Veteran's Virtual VA file. The report must note that the paper and Virtual claim files were reviewed. All appropriate tests should be conducted. The examiner should provide an opinion as to whether GERD was caused by or aggravated by any of the Veteran's periods of active service. A complete rationale for any opinion rendered must be provided. 5. The claim file should be returned to the VA examiner who conducted the January 2007 VA examination regarding the Veteran's hypertension to obtain a new medical opinion. The examiner must provide a complete rationale for the opinion that hypertension was not aggravated by the service connected diabetes mellitus. Furthermore, the examiner should provide an opinion as to whether hypertension was caused by exposure to herbicides during the Veteran's service in Vietnam. It is noted that exposure to herbicides has been conceded. If the examiner is not available, the claim file should be forwarded to another appropriate VA examiner for an opinion as to whether the claimed hypertension was caused or aggravated by the service connected diabetes mellitus, or was caused by exposure to herbicide. A complete rationale for all opinions rendered must be provided. 6. Thereafter, undertake any other development action that is deemed warranted, and re-adjudicate the claims on the merits. If any of the benefits sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs