Citation Nr: 1511531 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 08-07 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for gout of the ankles, feet, and knees. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2011, the Board remanded the case for additional development, to include scheduling a VA examination. The Board obtained a medical opinion from the Veterans Health Administration in November 2014, and the Veteran and his representative thereafter presented argument. FINDING OF FACT Gout of the ankles, feet, or knees was not shown during the Veteran's military service or for several years thereafter, and current gout is not attributable to service or to a disease or injury incurred during active military service. CONCLUSION OF LAW The Veteran does not have gout of the ankles, feet, or knees that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3,159, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, VA's duty to notify was satisfied through a notice letter dated in September 2005, that informed the Veteran of his duty and VA's duty for obtaining evidence and the process by which disability ratings and effective dates are assigned. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, service treatment records (STRs), post-service treatment records, and the Veteran's lay statements have been obtained and associated with the claims file. The Veteran has not identified any additional records that should be obtained prior to a Board decision. The Veteran was also provided a VA examination in December 2011 for the disability on appeal, and an opinion was obtained from VHA in November 2014. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds the examination and opinion are adequate for the purpose of evaluating the claim because the Veteran was examined, and the case was reviewed relative to the Veteran's pertinent medical history. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. While medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology). The Veteran asserts that during active military service he developed pain in his knees and ankles due to the rigors of service that was subsequently diagnosed as gout. See March 2008 VA Form 9. The Veteran asserts that during active service he was treated for pain and swelling, and had elevated uric acid levels, but was not diagnosed with gout until December 2001, after service discharge. STRs show treatment for a right ankle injury over the course of the Veteran's 20-year military career. An undated STR shows the Veteran reported to the emergency room due to ankle pain. An April 1984 STR shows the Veteran was treated for an inversion injury of the right ankle due to playing basketball. Examination revealed no swelling and full range of motion. The examiner's report reflects the right ankle was wrapped with an ACE bandage and treated with an ice pack and Tylenol. In November 1985, he complained of pain and swelling of both feet and was diagnosed with a possible cold weather injury. STRs are silent for any complaints, diagnosis, or treatment related to gout in service. A May 1997 report shows that the Veteran had elevated uric acid. On his July 1998 Report of Medical History prior to separation, the Veteran denied having or having had arthritis, rheumatism, or bursitis, and any bone, joint or other deformity. An August 1998 record shows that he complained of left ankle pain of two days duration. Post-service treatment records dated from February 2001 to May 2005 reflect treatment for painful and swollen knees, and sore joints. A February 2001 post-service treatment record shows the Veteran presented with left knee pain. He reported symptoms of swelling, giving away, and locking. The examiner's report reflects the Veteran reported no previous knee problems or injuries. Gout was to be ruled out. Blood serum laboratory report appeared to reflect elevated uric acid. See February 2001 Treatment Records from Family Practice Clinic. Another February 2001 post-service treatment record shows x-ray of the left knee revealed knee effusion. There was no arthropathy and no degenerative narrowing. The examiner's impression was knee effusion without other obvious abnormality. During a December 2001 clinic visit, the Veteran reported pain and swelling in the right ankle for two days. He reported positive relief with Indocin. The medication was continued and gout was the clinical assessment. An August 2003 post-service treatment record shows the Veteran presented with redness, swelling, and pain of the left ankle. See August 2003 Blue Family Practice Clinic. A February 2004 private treatment record shows the Veteran was treated for gout of the left knee. See February 2004 Private Treatment Record from Yellow Family Practice. A July 2004 post-service treatment record shows the Veteran was treated for gout at Maxwell Air Force Base. A February 2005 private medical record from V.M., M.D., a private clinician, reflects the Veteran was diagnosed with gout. June 2009 correspondence from D.H., M.D., a private clinician, states the Veteran received treatment due to a history of gout and two years of left knee swelling. Private treatment records dated from June 2009 to June 2010 show the Veteran was treated for gouty arthropathy by Dr. D.H. The Veteran was treated with injections to both knees for palliative relief and medications to include allopurinol. A September 2011 private treatment record from Primed Silver Hills shows the Veteran was treated for gout. In December 2011, the Veteran was afforded a VA non-degenerative arthritis examination. The examiner diagnosed gouty osteoarthritis of the ankles, feet, and knees. During the examination, the Veteran reported having had a gouty attack of his fingers, knees, and elbow at the end of active military service. He reported attacks occurred 2-3 times monthly involving swelling of his ankles, knees, hands, elbows, and big toe, with pain. He stated that he treated swelling with 0.6mg of colchicine every two hours, and the swelling goes down within two days. He used crutches during a gouty attack of the ankle and also twice that year for a period of two days. X-rays revealed mild degenerative joint disease of the ankle and knees. A VHA medical opinion was obtained in November 2014. The reviewer, an internist, analyzed the record entries made during the Veteran's military service, and noted that all injuries had been of short duration. It was noted that the mention of elevated uric acid in the record does not amount to a diagnosis of gouty arthropathy, and the Veteran was not diagnosed with gout until three years after his discharge from service. Based on a review of the record, the internist concluded that the joint pains in service were less likely than not related to gouty arthropathy. As indicated above, the Veteran asserts that his gout develop during active military service. The Board has considered the Veteran's assertion that there is a causal relationship between the swelling of his joints in service and his current gout disability. The Veteran is competent to report that he injured and had problems with his joints in service. The Board has also considered the statements offered by the Veteran's wife and his friend in this regard. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Veteran's statements as to an onset for his gout are less probative than the medical evidence of record, to include the Veteran's STRs, which do not reflect a diagnosis of gout. The earliest indication of gout as shown by the medical evidence of record was in 2001. This lapse in time weighs against the Veteran's assertions and apparently was a significant factor underlying the November 2014 VHA opinion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim). While the notation of an apparent increase in uric acid levels during service seems to suggest a likely problem in a common-sense sort of way, the Board has repeatedly been admonished by the United States Court of Appeals for Veterans Claims that it is wrong for the Board to exercise its own independent medical judgment. That is why the Board sought another opinion in 2014. Nevertheless, the opinion of the expert was that the problems the Veteran had in service were not related to gout. The competent medical opinion evidence is against the claim and stands unrefuted. Consequently, the preponderance of the evidence is against the claim. Given that the first clinical evidence of chronic disability was several years after service, and the objective medical opinions of record that current gout was not related to the Veteran's reported in-service events, a preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for gout of the ankles, feet, or knees is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs