Citation Nr: 1339880	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  10-12 576	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Whether new and material has been received sufficient to reopen a claim of entitlement to service connection for gout, and if so, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1989 to August 1989 and from October 1990 to December 2002.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  A January 2009 rating decision denied entitlement to service connection for PTSD and a November 2009 rating decision found new and material evidence had not been received sufficient to reopen a claim of entitlement to service connection for gout.

The Veteran testified at a Board hearing at the RO in Waco, Texas in October 2013.  This transcript has been associated with the file.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's claim of entitlement to service connection for gout was denied in a September 2006 rating decision; the Veteran did not perfect an appeal.  

2.  Evidence associated with the claims file since September 2006 is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for gout.

3.  The Veteran's gout is related to service.


CONCLUSIONS OF LAW

1.  Evidence received since the September 2006 rating decision that denied service connection for gout, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2013).

2.  The criteria for the establishment of service connection for gout have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

Since the Board is reopening the Veteran's claim and granting entitlement to service connection, the entire benefit sought on appeal has been granted.  Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

New and Material

Previously denied claims may be reopened with the submission of new and material evidence.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2013).  38 C.F.R. § 3.156(a) defines "new and material evidence."  "[N]ew evidence" means evidence not previously submitted to agency decision-makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is 'low.'  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The Veteran brought a prior claim for service connection for gout in 2006.  This claim was denied in a September 2006 rating decision of which the Veteran was notified in the same month.  The Veteran did not appeal this decision and it is final.  38 U.S.C.A. §§ 7103, 7266.  The appellant filed his petition to reopen his claim in September 2009.

At the time of the September 2006 denial, the evidence of record included VA treatment records, service treatment records, and a VA examination.  The RO found that new and material evidence had not been received to show a nexus between an in service diagnosis of gout and the Veteran's current claimed disorder.  

The evidence received since the September 2006 rating decision includes VA treatment records, the Veteran's testimony, and a medical opinion.  Significantly, in October 2011 a physician opined it was at least as likely as not that the Veteran's gout was related to service.  This evidence is new, as it was not previously of record at the time of the September 2006 rating decision.  It is also material in that it helps to support the Veteran's claim that his gout is related to service.  Therefore, the claim is reopened.



Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative 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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

The Veteran contends that his gout began in service and continued on thereafter.  For the reasons discussed below, the Board finds service connection is warranted.

In a November 2001 service treatment record the Veteran complained of left toe pain.  In a November 2002 treatment record the Veteran was diagnosed with acute gout.  

The May 2003 VA examiner opined that he could not determine if gout was related to service because of the lack of diagnostic tests in the past.  The Veteran has also consistently been treated for gout throughout the VA treatment records.  See e.g., June 2003 VA treatment record.

In an October 2011 statement a physician offered a statement that the Veteran's gout was at least as likely as not related to service.  His rationale was that the Veteran had consistently elevated uric acid levels causing gout.    
At the very least, the Board finds the evidence is in relative equipoise.  The Veteran was diagnosed with acute gout while in service.  The VA examiner could not opine whether the Veteran had gout, but an October 2011 physician opined it was at least as likely as not related to service.  The Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met.  As such, the Veteran's claim of entitlement to service connection is granted.  38 U.S.C.A. § 5107 (West 2002).


ORDER

New and material evidence having been received; the claim of entitlement to service connection for gout is reopened.

Entitlement to service connection for gout is granted.


REMAND

The Veteran has been diagnosed with PTSD.  Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f) (2013). 

Although the Veteran has been diagnosed with PTSD, it is unclear if he has been diagnosed as having PTSD due to events that occurred in service.  While a July 2006 VA physician diagnosed him as having PTSD, the opinion took into account events which happened while the Veteran was working as a civilian contractor in Iraq.  At his October 2013 Board hearing the Veteran identified additional stressors that may have caused his PTSD.  On remand, a new examination should be scheduled.


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1.  Obtain all of the Veteran's outstanding VA treatment records.  All information which is not duplicative of evidence already received should be associated with the claims file.  If the Agency of Original Jurisdiction (AOJ) is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim.  38 U.S.C. § 5103A(b)(2) (West 2002).

2.	Schedule the Veteran for a VA examination to determine if the Veteran has PTSD related to his military service.  The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished.  The entire claims file must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination.

Any necessary testing should be accomplished.  The examiner should utilize the DSM-IV in arriving at any diagnoses and should explain whether and how each of the diagnostic criteria is or is not satisfied.  After reviewing the record and examining the Veteran, in addition to the other information provided in the examination report, the examiner should state whether it is at least as likely as not that the Veteran has PTSD that is related to service.

It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood).  

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  

The examiner should provide a complete rationale for any opinion provided.  A detailed rationale should be provided for all opinions.  Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why this is so.

3.  After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

4.  After the development requested above has been completed to the extent possible, the record should again be reviewed.  If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto.  

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. 2013).



______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs