Citation Nr: 1815398	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  14-24 552	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for gout of multiple joints, to include knees and feet.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Martinez, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1989 to July 1992 and from November 2009 to December 2010. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Regional Office in Houston, Texas has jurisdiction over the Veteran's case.

In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record. 

The RO initially denied service connection for gout in a July 2008 rating decision.  On that occasion, the RO determined that the evidence failed to establish a current diagnosis of gout.  This decision and rationale were confirmed by the RO in an August 2009 rating decision.  The August 2009 rating decision became final, as the Veteran did not appeal the denial or submit any pertinent evidence within the appeal period.  Thereafter, the Veteran initiated a claim to reopen his previously denied claim. 

A current diagnosis of gout is shown by private treatment records dated from September 2009 through February 2011, as well as by VA treatment records dated from June 2008 through August 2011.  The Board finds this evidence to be new and material, as it relates to unestablished facts, and raises a reasonable possibility of substantiating the Veteran's claim.  See 38 C.F.R. § 3.156(a) (2017).  Thus, reopening of the Veteran's claim is warranted.

The Board acknowledges that the issues of entitlement to an increased rating for PTSD, and to service connection for respiratory conditions, shaving issues, headaches, burning eyes, and permanent discoloration of the skin have been perfected, but not certified to the Board.  The Board's review of the claims file reveals that the RO is still taking action on these issues.  As such, the Board will not accept jurisdiction over these issues at this time, but they will be the subject of a subsequent Board decision, if otherwise in order.


FINDING OF FACT

The Veteran's preexisting gout was aggravated during his period of active service.


CONCLUSION OF LAW

The criteria for service connection for gout have been met.  38 U.S.C. §§ 1110, 1153, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must weigh against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Factual Background and Analysis

The Veteran claims entitlement to service connection for gout, which he contends aggravated during his active duty service. 

At the outset, the Board notes that the Veteran has a current diagnosis of gout of multiple joints, including knees and feet.  Further, the record indicates that the Veteran's gout was initially diagnosed in September 2009.  See the Veteran's private treatment records dated September 9, 2009.  Accordingly, the Veteran's gout existed prior to his active service from November 2009 to December 2010.  Thus, this case principally hinges upon whether the Veteran's preexisting gout was aggravated during his active service.

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  An increase of severity during service may be shown based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  See 38 C.F.R. § 3.306 (b).  If the presumption of aggravation arises, the burden shifts to VA to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004).  The presumption of aggravation can only be rebutted by clear and unmistakable evidence (obvious or manifest).  38 C.F.R. § 3.306(b).  

The Veteran alleges that his gout was aggravated while deployed to Afghanistan from December 1999 to November 2010, as he did not have adequate treatment and medication during this time. 

In a September 1999 pre-deployment health assessment, the Veteran described his general health as "very good".  A December 2009 rheumatology examination indicates that the Veteran was fit for duty and deployment yet still mentioned that he was diagnosed with gout.  Nevertheless, service treatment records (STRs) indicate that the Veteran was treated five times for gout symptoms while deployed in 2010.  Moreover, STRs dated November 2010 indicate that the Veteran's gout symptoms increased during his deployment to Afghanistan.

The Board notes that the Veteran's gout symptoms have been continuous since his 2009-10 deployment.  VA treatment records from February 2011 to December 2014 showed a diagnosis of chronic gout affecting different joints including knees and feet.  Moreover, from February to May 2011, VA treatment records showed monthly gouty attacks.  Furthermore, a September 2011 VA examination indicates that the Veteran had periodic gout attacks with severe flare-ups every 3 weeks, which would limit his functional capacity. 

Upon a review of the evidence of record, and having resolved all reasonable doubt in favor of the Veteran, the Board has concluded that the competent and credible lay and medical evidence support the Veteran's claim that gout, which pre-existed service, was aggravated by his period of active duty service from November 2009 through December 2010.  Therefore, the Veteran is entitled to service connection for his gout disability.


ORDER

Service connection for gout of multiple joints, to include knees and feet, is granted.



____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs