Citation Nr: 1800487 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-58 404A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for gout, to include as secondary to service connected disabilities. 2. Entitlement to an increased rating for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Richard Hurley, Attorney WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from May 1946 to December 1947. This matter comes before the Board of Veterans' Appeals (Board) from the September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared at an August 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in September 2017 and was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to an increased rating for gastroesophageal reflux disease (GERD) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's gout is not related to his military service. 2. The Veteran's gout was not caused or aggravated by his service connected malaria or infectious hepatitis. CONCLUSION OF LAW The criteria for service connection for a gout disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As for the duty to notify, a VCAA letter was sent to the Veteran in October 2003. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, VA examinations have been secured in connection with the current claim satisfying VA's duty to assist with respect to obtaining a VA examination. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Compliance with Prior Board Remands The Board observes that this case was previously remanded by the Board in September 2017. The purpose of this remand was to obtain outstanding treatment records and obtain a VA opinion. Upon remand, the Veteran's treatment records and a VA opinion was obtained. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). III. Other Due Process Considerations As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in August 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his gout disability. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited attorney. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). IV. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.310, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service connected disease or injury, or for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). V. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In December 2016, the Veteran underwent a VA gout examination. The examiner noted that the Veteran reported onset of gout symptoms in the right foot around 1999 and began medication for the condition at that time. The Veteran reported the last flare up approximately one year prior. The examiner opined that the Veteran's gout is less likely than not due to or the result of the Veteran's service connected malaria or infectious hepatitis. The examiner explained that gout occurs when urate crystals accumulate in the joints, causing inflammation and intense pain. The examiner stated that there is no medical literature to support that the Veteran's inactive malaria or hepatitis caused his gout. However, the examiner did not discuss whether or not the Veteran's gout is directly related to his military service. Additionally, regarding secondary service connection, the examiner failed to state whether the Veteran's service connected disabilities aggravate his gout. Therefore, in September 2017, the Board remanded this matter for a new VA opinion regarding direct and secondary service connection of the Veteran's gout disability. Additionally, the Board acknowledges the August 2017 examination report completed by a private physician. The report states that the Veteran has a diagnosis of gout, which was reported by the Veteran to have its onset in 1958. The physician stated that the Veteran's gout is secondary to his service connected malaria and infectious hepatitis. However, the physician did not provide any rationale to support this opinion. Thereby, the Board does not give this opinion much probative value. Pursuant to the Board's September 2017 remand, a VA opinion was obtained in October 2017. The examiner opined that it is less likely than not that the Veteran's gout began in service, was caused by his service, or is otherwise related to his military service. The examiner referenced the Veteran's August 1947 medical examination that revealed that the Veteran's bones, joints, and muscular system were normal. Additionally, a December 1947 examination report revealed that the Veteran's musculoskeletal and feet areas had no arthritis changes and an April 1948 examination report revealed no entries marked for the musculoskeletal or feet areas. Additionally, an April 1948 report of medical history form revealed a negative response for arthritis, bone joint, or other deformity, painful or trick shoulder or elbow, and/or trick or locked knee. The examiner noted that there are no service treatment records seen which document that the Veteran had ongoing issues with arthritis of the joints. Furthermore, the examiner stated that there are no reports seen during the Veteran's service that demonstrate that the veteran had an elevated uric acid or biopsy/fluid analysis results demonstrating the presence of uric acid crystals. The October 2017 examiner also reviewed the Veteran's private sector treatment notes and stated that there are no records that show that the Veteran was treated for a continuation of the same problem that arose from the military service shortly after his active duty separation. The examiner acknowledged that a June 2003 discharge summary specified a diagnosis of gout and a separate April 2004 note detailed a diagnosis of gout. Furthermore, an August 2017 treatment note stated that the Veteran's gout was originally diagnosed in 1958. The examiner explained that while the Veteran was in the military, he did not have a characteristic history or physical examination findings for gout or arthritic episodes. Additionally, there were no diagnostic studies completed at the time of the Veteran's service that determined that he had gout. The examiner referenced one private treatment note that stated that the Veteran's gout was diagnosed in 1958, eleven years after the Veteran separated from service. However, the examiner stated that the long length of time from the Veteran's military service to the time of his diagnosis in 1958 would "sever a causal relationship with the military service." Regarding secondary service connection, the examiner opined that it is less likely than not that the Veteran's gout is caused by his service connected malaria or infectious hepatitis. The examiner referenced the Veteran's December 2016 VA examination, which provided the same opinion, that the Veteran had inactive malaria and inactive infectious hepatitis since he left military service and that the medical literature does not support that inactive malaria or inactive hepatitis cause gout. The October 2017 examiner stated that gout occurs when excess uric acid (a normal waste product) collects in the body, and needle-like urate crystals deposit in the joints. Alternatively, malaria is a disease caused by a parasite, transmitted by the bite of infected mosquitos, and infectious hepatitis is caused by the Hepatitis-A virus. The examiner concluded that consequently the condition of gout, malaria, and infectious hepatitis are different and unrelated conditions caused by different mechanisms with no relationship to each other. Additionally, the examiner elaborated that the inactive cases of the Veteran's infectious hepatitis and malaria cannot be responsible for gout, further strengthening the examiner's opinion. Finally, the examiner opined that it is less likely as not that the Veteran's gout was aggravated beyond its natural progression by the Veteran's service connected malaria and infectious hepatitis. The examiner again referenced the December 2016 VA examination that stated that the Veteran's gout involved the right foot and that the Veteran reported that his condition had been under good control with medications with a flare-up one year prior. The December 2016 examination additionally stated that the Veteran's gout condition was being managed with the use of continuous medication, the Veteran had not lost weight or had anemia due to the gout, his gout only involved the foot and toes on the right side, no limitation of joint movement was noted, no joint deformities due to the gout were present, no systemic involvement was due to the gout, no exacerbations were acknowledged, the Veteran had no totally incapacitating constitutional manifestations associated with the gout, no definite impairment of the Veteran's health objective supported by examination findings were noted due to the gout, the Veteran had no associated scars, he did not require an assistive device, and there was no impact on the Veteran's ability to work due to his gout. Therefore, the October 2017 examiner concluded that the evidence of record demonstrates that the Veteran's gout is stable and reveals no abnormalities other than what would normally be expected from his condition. Thereby, the examiner concluded that the Veteran's gout has not been aggravated by his service connected malaria and infectious hepatitis. Therefore, based on the medical and lay evidence of record, the Board finds that service connection for gout, both on a direct and secondary basis, is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). ORDER Service connection for gout, to include as secondary to service connected disabilities, is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). In August 2014, the Veteran filed a claim for GERD. In a September 2017 Board decision, the Board granted service connection for this issue, which is considered a full grant of benefits. Subsequently, in October 2017, the RO evaluated the Veteran's GERD as 10 percent disabling. In October 2017, the Veteran submitted a Notice of Disagreement (NOD) with this evaluation. However, a Statement of the Case has not been issued; therefore, the Board directs that the RO issue one, as directed below, in accordance with 38 C.F.R. §§ 19.26, 19.29 and Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the Board accepts limited jurisdiction over this issue, for the sole purpose of remanding to order issuance of a Statement of the Case along with information about the process for perfecting an appeal, if the Veteran so desires. 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.) Furnish the Veteran with a Statement of the Case pertaining to the issue of entitlement to service connection for GERD. This claim will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. By this remand, the Board intimates no opinion as to any final outcome warranted. 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 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs