Citation Nr: 1757575	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  14-14 011	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for gout.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. Nelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from February 1976 to February 1979. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  Jurisdiction has subsequently been transferred to the Houston, Texas RO. 

The Veteran attended a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2016.  A transcript of that hearing has been prepared and is associated with the file.

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). 


FINDING OF FACT

The Veteran's current gout disability had its onset in service.


CONCLUSION OF LAW

The criteria for service connection for gout have been met.  38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service.  38 U.S.C. § § 1131; 38 C.F.R. § 3.303(d). 

Service connection generally requires evidence showing: (1) the existence of a current 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 during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service.  38 U.S.C.A. § 1111. 

A Veteran is competent to report his symptoms, the onset of those symptoms, and treatment.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In this regard, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)

In relevant part, 38 U.S.C. § 1154(a) requires that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology).  Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible.  See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.


Factual Background and Analysis

Initially, the Board notes that the Veteran has a current diagnosis of gout in both feet, thereby satisfying the first element for service connection.

Although the Veteran's service treatment records do not include a diagnosis for gout, the Veteran testified at his hearing that he had an episode of gout in Basic Training, and was ordered to bedrest.  In his Substantive Appeal, he stated that he had uric acid build up in his big toe while at Basic Training, which he attributed to wearing issued boots, which were a size too small.  The Board finds the Veteran's statements credible.  Although he is not competent to make a medical diagnosis, he is competent to relate a contemporaneous medical diagnosis, and the reason for being ordered to bedrest in Basic Training.  Therefore, the second element of service connection is met.

The Veteran was afforded a VA examination in November 2012.  A diagnosis of gout was noted, and the Veteran's treatment at a private foot clinic was noted.  However, no medical opinion or nexus opinion was provided.

The Veteran submitted a letter from his private physician, dated September 27, 2016.  That physician wrote, "His history includes suffering a gouty attack while in the military in which his uric acid was high and treatment at that time included bedrest and medication...I believe his condition is at least related to his time in the service when he experienced his first gouty attack but it is an inherited and lifelong condition."  The Board finds this physician's nexus opinion probative, and therefore, the third element of service connection is met.

In sum, based on the totality of the evidence, to include the Veteran's statements and the private physician's letter, as well as medical records showing the diagnosis and symptoms of gout, the Board finds that the evidence supports the grant of service connection for gout.


ORDER

Service connection for gout is granted.




____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs