Citation Nr: 18149714 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-25 904 DATE: November 13, 2018 ORDER Service connection for gout of the right big toe gout is denied. Service connection for gout of the left big toe is denied. Service connection for a skin disorder is denied. REMANDED Entitlement to service connection for a right ankle disorder. FINDINGS OF FACT 1. The Veteran had active duty service in the Army from August 1976 to January 1977, September 1977 to September 1982, September 1990 to August 1991, and in the Army Reserve from September 1988 to February 1989. 2. Right and left toe gout was not shown in service; right and left toe gout was not shown to a compensable degree within one year of service; symptoms of right and left toe gout were not continuous since service; and a current diagnosis of right and left toe gout is not causally or etiologically related to service. 3. A skin disorder, currently diagnosed as eczema, was not shown in service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Gout of the right big toe was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2017). 2. Gout of the left big toe was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2017). 3. A skin disorder, diagnosed as eczema, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.3.7, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and other functional disorders. The disability must manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. An undiagnosed illness is one which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71, 382-84 (Oct. 17, 2016). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. Only “veterans” are entitled to VA compensation under 38 U.S.C. §§ 1110, 1131. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To establish status as a “veteran” a claimant must serve on active duty, serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA, or serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus, service in active duty alone is sufficient to meet the statutory definition of veteran; however, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one “veteran” status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010).   Gout of the Right and Left Big Toes As to a current diagnosis, the Veteran was diagnosed with gout and meta-tarsophalangeal joint arthritis during a VA examination in 2014. Therefore, a current disorder has been shown. As to in-service incurrence, service treatment records (STRs) reflect that he was treated in January 1989 for top of foot to toes problem and swelling of the feet and flat foot pain. There were no complaints related specifically to the toes or to gout. He reported a foot problem in the separation examination but the Board notes that he had been having problems with his right ankle (which is remanded below). Further, the Veteran has indicated that he was not treated for or diagnosed with gout in service. Therefore, the medical evidence does not support an in-service incurrence. To the extent that the Veteran asserts a medical nexus between the current diagnosis of gout and service, the medical evidence does not support this conclusion. Of note, in a March 2014 VA examination, the Veteran related a 2-year history of gout and the examiner opined that gout was not related to Gulf War exposure. No other medical evidence supports the claim. As a result, direct service connection is not warranted. Next, gout is a form of arthritis and presumptive service connection will be considered. However, the medical evidence does not show that gout was manifested to a compensable degree within one year of service or that symptoms were continuous since service. Of note, gout was not recorded or diagnosed until 2012, more than 20 years after separation from active duty service. Therefore, the medical evidence does not support presumptive service connection. Further, as the March 2014 examiner found that gout was not related to service in the Persian Gulf, the medical evidence does not support the claim on the basis of a Persian Gulf presumption. With respect claims for gout, the Board has considered the Veteran’s lay statements that gout was caused by service. He also submitted two lay statements from colleagues serving with him in Saudi Arabia corroborating his foot problems and inability to wear boots. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses and his buddies are competent to report their observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, they are not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Further, the STRs indicate that the Veteran was directed to wear boots, tennis shoes, or modify his duty primarily to protect his right ankle, not his big toes. Competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his and his buddies’ statements. As such, the medical records are more probative than the lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeals are denied. Skin Disorder As to a current disorder, the Veteran was diagnosed with eczema during in a 2014 VA examination and as early as 1996. Therefore, a current disorder has been shown. As to in-service incurrence, the STRs show treatment for dry, flaky skin relating to earwax and tinea cruris (jock itch) in 1979. In 1988, it was noted that he had past evidence of miliaria (blocked sweat glands) without indication of when this occurred; however, eczema was not shown. In the absence of an in-service incurrence, the second element of direct service connection has not been met. As to presumptive service connection, eczema is not listed as a chronic disease so presumptive service connection is not for application. In addition, the March 2014 VA examination opined that eczema was less likely than not related to exposure during service in Southeast Asia. With respect to the Veteran’s lay statements that his skin disorder started in service and statements from two lay witnesses who describe dry, flaky, burning skin on his lower extremities in 2013, they are shown to have the requisite training and expertise to associate their observations with a diagnosis of a skin disorder. As above, the Board places more probative weight to the competent medical evidence than to the lay statements. As such, the appeal is denied. REASONS FOR REMAND With respect to the remaining claim, the Veteran is diagnosed with right ankle strain (arthralgia of the ankle and/or foot). He contends that his right ankle strain was caused when he fell on stairs that “gave way.” The STRs indicate treatment for “injury to right ankle & foot on job” in July 1990 (before his third and final period of active duty), and a diagnosis of “sprain rt. ankle” in late April 1991 (while he was on active duty). He received post-service VA and private medical treatment on his right ankle in 2012, 2014, and 2015. Although the Veteran underwent a VA examination in 2014, there was no opinion as to whether there was a relationship between the pre-service job injury and the in-service April 1991 injury. As such, another examination should be undertaken to address this issue.   The matter is REMANDED for the following actions: 1. Confirm the Veteran’s periods of Reserve service and associate any medical records with the file from that service. 2. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record. 3. Schedule the Veteran for an examination to determine the nature and etiology of his right ankle disorder. The claims file must be made available to, and reviewed by the examiner to include clarification of any impact the July 1990 injury had on the April 1991 fall. Any indicated studies should be performed. 4. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that his right ankle is etiologically related to the Veteran’s active service. The rationale for all opinions must be provided. Readjudicate the issue on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case to him and his representative and   allow the appropriate time for response. Then, return the case to the Board. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hamilton, Associate Counsel