Citation Nr: 1800158 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 17-00 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for gout. 2. Entitlement to service connection for gout, to include as secondary to hypertension, diabetes mellitus, type II, and diabetic neuropathy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1963 to April 1964 and from May 1968 to August 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Previously, the issue of entitlement to service connection for gout was denied in an April 2014 rating decision which became final. In the July 2016 rating decision, the RO reopened the Veteran's claim for gout and denied secondary service connection. The case is presently before the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for gout, to include as secondary to hypertension, diabetes mellitus, type II, and diabetic neuropathy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An April 2014 rating decision denied service connection for gout. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. Evidence received since the April 2014 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for gout. CONCLUSIONS OF LAW 1. The April 2014 rating decision denying the claim for service connection for gout is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received sufficient to reopen the claims of entitlement to service connection gout. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). New and Material Evidence Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C. § 5108 (2012); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. 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. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017); Smith v. West, 12 Vet. App. 312 (1999). 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 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran's claim of entitlement to service connection for gout was last denied in an April 2014 rating decision, which found that the evidence did not support a finding for direct service connection. As the Veteran did not perfect his appeal within 60 days of the SOC or the remainder of the one year period from the April 2014 rating decision, said rating decision became final. Since April 2014, additional medical evidence has been added to the record, to include a medical opinion from the Veteran's private physician suggesting that the Veteran's gout is aggravated by the Veteran's service-connected diabetes mellitus, hypertension, and diabetic neuropathy. This particular evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly-submitted evidence, the Veteran's previous claim for service connection was denied because the evidence did not demonstrate that the Veteran's gout was etiologically related to his active duty service. The newly-submitted evidence contends secondary service connection is warranted, and relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, and acknowledging the "low" threshold for determining whether new and material evidence has been submitted, the claim for service connection for gout is reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for gout is reopened REMAND Although the claim for service connection for gout is reopened, further development must be conducted before the Board may address the underlying claim for service connection for this disability. The Veteran's new claim for service connection for gout contends that service connection is warranted on a secondary basis. Specifically, the Veteran contends that his gout condition was aggravated and worsened by his service-connected disabilities of diabetes mellitus, type II (diabetes), hypertension, and his diabetic neuropathy (neuropathy). In support of his contention, the Veteran submitted written statements, with referenced medical literature, from his private physician in April 2016 and December 2016, which advised that the Veteran's gout is aggravated and exacerbated by his diabetes, neuropathy, and treatment with hydrochlorthiazide for his hypertension. In July 2017, VA obtained a medical opinion to determine the validity of the Veteran's contention of whether the Veteran's gout was caused or aggravated by his diabetes, neuropathy, and/or his hypertension. Although the examiner concluded that the Veteran's gout is less likely than not proximately due to or the results of diabetes, hypertension, or treatment associated with both, the examiner's medical rationale only addressed "causation" and did not include any medical rationale regarding "aggravation;" therefore, the opinion is inadequate. See El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013) (finding that the VA examiner's statement that it is NOT at least as likely as not that the Veteran's PTSD caused his alcohol abuse, and that the Veteran's fatal alcoholism was "related to" factors other than his service-connected PTSD was not sufficient to permit the BVA to conclude that the Veteran's service-connected PTSD did not aggravate his alcoholism). The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of "aggravation" is pertinent in order for the Board to properly adjudicate the Veteran's claim. Additionally, the Board notes that if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination report). Therefore, an addendum medical opinion addressing aggravation is needed for proper adjudication of the Veteran's claim. 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). Expedited handling is requested). 1. Attempt to obtain all of the Veteran's outstanding VA treatment records, if any, and any other medical evidence that may have come into existence or is identified since the time the Veteran's claim was filed. All efforts to obtain these records must be documented in the Veteran's claim file. 2. Obtain an addendum opinion from the July 2017 VA examiner. If the examiner is not available, obtain an addendum opinion from another qualified physician based on review of the claims file. If deemed necessary by the examiner rendering the addendum opinion, afford the Veteran a VA examination. 3. The examiner should provide an opinion, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's gout was proximately due to or aggravated by the Veteran's service-connected disabilities of diabetes mellitus, type II, hypertension, and/or his diabetic neuropathy, and any treatment associated with any of the disabilities. The examiner should note aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. 4. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. After completion of the above, readjudicate the claim. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). 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. §§ 5109B, 7112 (2012). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs