Citation Nr: 18151448 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 08-23 571 DATE: November 19, 2018 ORDER Service connection for gouty arthritis is denied. FINDING OF FACT Gouty arthritis is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and was not caused or aggravated by service-connected hypertension. CONCLUSION OF LAW The criteria for service connection for gouty arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to October 1980. He died in March 2014 and the appellant is his surviving spouse who has been accepted as a substitute claimant for the purpose of processing this appeal to completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing before a Veterans Law Judge in connection with his appeal. Such hearing was scheduled for June 2014; however, he unfortunately passed away prior to such date and, consequently, his hearing was cancelled. The appellant has not requested that the hearing be rescheduled. Therefore, the Board finds that there are no pending hearing requests at this time. In December 2017, the Board reopened the claims of entitlement to service connection for hypertension and gouty arthritis, granted service connection for hypertension, denied service connection for diabetes mellitus, type II, and remanded the claim for service connection for gouty arthritis for additional development. Such matter now returns to the Board for further appellate review. Entitlement to service connection for gouty arthritis, to include as secondary to service-connected hypertension. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the record reflects that the Veteran had a diagnosis of gouty arthritis during his lifetime. However, his service treatment records are negative for any complaints, treatment, or diagnosis referable to such disorder. Moreover, the record does not show that the Veteran manifested gouty arthritis to a compensable degree within one year of his separation from service in October 1980. In this regard, the first indication of such disorder was in January 1984. Moreover, neither he nor the appellant have alleged a continuity of symptomatology of gouty arthritis that has been related to such a diagnosis in his first post-service year. Therefore, service connection for gouty arthritis on a direct or presumptive basis is not warranted. As relevant to the secondary aspect of her claim, the appellant contends that the Veteran’s service-connected hypertension, or medications taken for such disability, caused or aggravated his gouty arthritis. In this regard, the Board notes that service connection for hypertension is currently in effect. However, there are conflicting medical opinions as to whether such disability caused or aggravated the Veteran’s gouty arthritis. Specifically, a diagnosis of probable gout, aggravated by blood pressure medication, was noted in January 1984. Further, in a July 2018 opinion, Dr. J.D.V. indicated that she reviewed the Veteran’s medical treatment records and opined that it was at least as likely as not that his gout was proximate to his service-connected hypertension. In this regard, she indicated that she based her opinion on the well-established medical fact that high blood pressure can reduce kidney function, which in turn increases uric acid production, which can also cause gout. However, the Board affords no probative weight to Dr. J.D.V.’s opinion as it appears to assume that the Veteran had decreased kidney function, thereby indicating that his hypertension caused or aggravated his gouty arthritis. However, as discussed in detail below by a July 2018 VA examiner, the Veteran did not have decreased kidney function or chronic kidney disease. Consequently, Dr. J.D.V.’s opinion is based on an inaccurate factual premise and, therefore, is afforded no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In contrast, a July 2018 VA examiner reviewed the complete record, and opined that the Veteran’s gouty arthritis is less likely than not proximately due to, the result of, or aggravated by his service-connected hypertension, or medications taken for such disability. In this regard, she noted that gout had many risk factors, a number of which the Veteran had, to include age, overweight, and male gender. She further observed that he also had hypertension; however, the proposed mechanism whereby hypertension leads to gout would be via chronic kidney disease. In this regard, the examiner noted that the Veteran did not have evidence of, or documentation reflecting, of chronic kidney disease at the time of the onset of his gout. She further observed that, while glomerular filtration rate, the current standard for measurement of renal function was not available in the 1980’s, his creatinine was borderline. However, even after an additional 22 years of hypertension, the Veteran still had no chronic kidney disease as demonstrated by his glomerular filtration rate or creatinine, which the examiner found indicated that his gout was not due to chronic kidney disease as proposed by Dr. J.D.V. With regard to aggravation, the examiner observed that the Veteran did have a gout attack in 1984 while on HCTZ for hypertension. In this regard, she noted that diuretics reduce urate excretion by increasing urate reasbsorption and decreasing urate secretion. The examiner cited current medical literature that indicated that recent use of diuretics is associated with a significantly increased risk for recurrent gouty arthritis; however, such was noted to be a modifiable risk factor. In this regard, she noted that, when HCTZ is stopped, its effects on the urate concentrations cease and are no longer a factor. Consequently, while the HCTZ in 1984 may have increased the Veteran’s urate temporarily and aggravated his gout, the effective would be temporary and not persist after CHTZ use was discontinued as it was in January 1984. Therefore, after the attack in 1984, the Veteran’s gout was not due to or aggravated by HCTZ. In further support of her opinion, the examiner cited current medical literature regarding the relationship between hypertension and gout. The Board accords great probative weight to the July 2018 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the Veteran’s and appellant’s contentions, and provided a complete rationale, relying on and citing to the records reviewed as well as current medical literature. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board observes that, in his October 2018 Appellant’s Post-Remand Brief, the appellant’s representative noted the aforementioned conflicting opinions, and argued that, if the Board was unable to grant service connection for gouty arthritis, it was requested that the Board exercise its authority under 38 C.F.R. §§ 3.328 and 20.901(d) to request an Independent Medical Opinion (IMO) from an expert outside of the VA as the evidence is in conflict as to the etiology of the Veteran’s gouty arthritis. In this regard, the provisions of 38 C.F.R. §§ 3.328 and 20.901(d) provide for an IMO when the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an IMO. However, in the instant case, the Board finds that such is not necessary. In this regard, while Dr. J.D.V. and the July 2018 VA examiner offered conflicting medical opinions, Dr. J.D.V.’s was based upon an inaccurate factual premise. Consequently, there is no outstanding medical question of obscurity, complexity, or controversy that justifies an IMO. Therefore, the Board finds that referral for such opinion is not warranted. Furthermore, the appellant’s representative has not otherwise argued that the July 2018 VA opinion is inadequate for deciding the claim. Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). The Board has also considered the appellant’s and the Veteran’s statements in support of the instant claim that his gouty arthritis is related to his military service or hypertension. While they are competent to report the observable symptoms of gouty arthritis, the Board finds they are not competent to offer an opinion as to the etiology of such disorder since they do not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorder, to include whether such is related to his hypertension, or medications taken for such disability, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, the impact of elevated blood pressure, and any medications taken for such disability, on gout extends beyond a process observable by lay people. Therefore, as such is a complex medical question, the appellant and the Veteran are not competent to offer an opinion as to the etiology of his gouty arthritis, and, consequently, their opinions on such matter are afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that gouty arthritis is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and was not caused or aggravated by service-connected hypertension. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim for service connection for gouty arthritis. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Almosd, Associate Counsel