Citation Nr: 18141722 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 11-14 666 DATE: October 11, 2018 ORDER Entitlement to service connection for gout is denied.   FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has gout due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for gout are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to May 1971, including service in the Vietnam War. The Veteran appeals a June 2006 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a July 2017 Board remand order, the Board ordered that the Veteran was entitled to a VA examination for his gout to determine the nature and etiology of the Veteran’s present-day gout, and a foot problem noted in his service treatment records. The Veteran was afforded such an examination in September 2017. While on remand, the RO issued an August 2018 rating decision granted service connection for residuals of leg injury, and histoplasmosis of the left and right eye. The record makes no indication that the Veteran has disagreed with the RO’s rating of either disability, and thus the Board lacks jurisdiction over these claims. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of a disability rating). If the Veteran wishes to disagree with that determination or file for an increased rating for either, or both disabilities, he may do so. Finally, the Board acknowledges that the Veteran submitted a RAMP opt-in election form, the appeal has already been activated and is no longer eligible for the RAMP program. Service Connection The Veteran asserts that his gout is related to his time in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease results in a present disability that incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran was first diagnosed with gout in May 2005, and has continued to have a diagnosis of gout during the appeal. Thus, the Veteran meets the current disability requirement. As such, the Veteran’s claim for entitlement to service connection for gout depends on the existence of a nexus between the Veteran’s gout, and his service. The Veteran’s service treatment records do not reflect a diagnosis or symptoms of gout. A December 1970 service treatment note indicated a foot problem due to a wart on the foot. The Veteran’s August 1970 separation clinical evaluation, and an April 1987 Army Reserve medical clinical evaluation found that the Veteran’s feet were normal. The Veteran was diagnosed in May 2005 with gout by a private physician complaining of right foot, right knee pain, and swelling. During the exam, the Veteran stated that his gout had been getting bad for the last three years. A June 2009 VA medical note found that Veteran did not have an attack of gout for decades since 1970. Similarly, the Veteran reported in a January 2012 VA medical treatment note that his last attack of gout was around 40 years ago. The Veteran stated, in a January 2017 VA medical treatment record, that he had gout once in the military and 2-3 episodes of gout since that time. The Veteran was afforded a VA examination in September 2017. The Veteran stated that he was treated for gout in his right toe while in Holland during military service. The VA examiner concluded that the Veteran’s gout was not connected to service. The VA examiner opined that service treatment records from active duty are silent regarding a diagnosis of gout or symptoms consistent with gout. The separation examination was found to be normal, and was silent regarding a diagnosis of gout or symptoms consistent with gout. The VA examiner added that, “There is no objective evidence linking the gout diagnosed in 2005 to the active duty service ending in 1971. The first documented diagnosis of gout is dated [May] 2005, greater than 30 years after separation from active duty. Records regarding gout also indicate alcohol abuse with 2-3 beers per day.” Finally, the VA examiner opined, “the gout diagnosed in 2005 is more likely than not (greater than 50% probability) proximately due to the medically recognized risk factors for gout including dietary factors and consumption of beer (MayoClinic.com).” The Board finds the September 2017 examination probative. The VA examiner reviewed the Veteran’s claim file and service treatment records. The VA examiner’s opinion is factual consistent with the VA medical records reflecting the Veteran consumed 2-3 beers per day. Additionally, the VA examiner provided an explanation for the Veteran’s current diagnosis of gout based on the medical evidence on record. Finally, the VA examiner’s opinion is consistent with the VA medical records indicating gout occurring periodically. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Neither the Veteran nor the Board has the competence to dispute this VA examiner’s opinion as the nexus question at issue is not one that is capable of lay observation, within the common knowledge of a lay person, or otherwise within the competence of a non-medical expert. See Monzingo, 26 Vet. App. 97, 105-06 (2012); Fountain, 27 Vet. App. at 274-75. A May 2005 private physician stated that the Veteran had a history of gout. The private physician did not provide an etiology of the Veteran’s gout. While the Veteran believes his gout is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of gout symptoms, causes, and treatment. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran is not competent to determine that any ongoing symptoms were related to any symptoms during service. See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (medical expertise is required to relate the Veteran’s present arthritis etiologically to his post-service symptoms). Consequently, the Board gives more probative weight to the VA examiner’s opinion. His representative has argued for service connection based on continuity of symptomology. See August 2018 Appellant Brief. According to the representative, the Veteran’s lay statements of gout occurring since service and medical evidence of gout occurring until today warrant a grant of service connection under 38 C.F.R. § 3.309(a). However, continuity of symptomology only applies to chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Gout is not listed as a chronic disease under 38 C.F.R. § 3.309(a). Therefore, the Veteran is not entitled to service connection because of a continuity of symptomology. Even if it were a chronic disease, the evidence does not indicate a continuity of symptomatology. For instance, a June 2009 VA medical note recorded the Veteran’s statement that he had not had a gout attack “for decades” since 1970. Similarly, in January 2012, he gave a history of one gout attack “around 40 years ago.” Likewise, during treatment in January 2017, he reported “one-time in military, and 2-3 episodes since that time” with “no major recurrences.” This evidence contradicts a finding that he has had ongoing symptoms after service. Considering the above, the Board concludes that the preponderance of the evidence is against the claims for service connection. Consequently, the issue of entitlement to service connection for gout is denied. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel