Citation Nr: 20005663 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 19-10 328 DATE: January 23, 2020 REMANDED Entitlement to service connection for gout, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1992 to August 1997. While the Board regrets the additional delay, due to the VA’s failure to assist, the Veteran’s claim of entitlement to service connection for gout must be remanded. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In May 2017, the Veteran was afforded a VA knees and lower legs examination. The examiner confirmed that the Veteran had the diagnosis of gout. The Veteran reported that he was diagnosed with gout between 1993 and 1995 and that he continued to have attacks of gout approximately once per month. The Veteran stated that he has continued to have trouble with both knees and ankles since active duty. The examiner opined that the Veteran’s gout was less likely than not incurred in or caused by the claimed in-service injury, event or illness because there is no evidence of diagnosis of gout on active duty. In January 2019, the Veteran was provided another VA examination for his gout. The examiner confirmed the Veteran’s diagnosis of gout. The Veteran reported that he began to experience knee, bilateral foot and ankle pain and swelling in service and that he was prescribed Ibuprofen. He stated that he was diagnosed with gout in 1997, was prescribed Cholcicine in 1999, and was started on Allpurinol in 2002 with improvement in symptoms. The examiner opined that the Veteran’s gout was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale explained that “the Veteran’s diagnosis of gout and his complaints of numbness and tingling of feet due to claims of cold exposure are not related. Although the Veteran was afforded VA examinations considering his gout, those examinations did not consider the entire record, including the lay statements of the Veteran. The service treatment records reveal that the Veteran did not just report numbness and tingling due to cold weather during service, but he reported constant left knee pain, pain located at his ankle, and pain in his knees with swelling and edema. In addition, he was diagnosed with right and left knee strains. The Veteran contends that he was misdiagnosed and that the conditions he reported in service were actually gout. Neither the May 2017 examiner, nor the January 2019 examiner, considered the possibility that the Veteran’s reports of pain and swelling in his ankles and knees during service may have been undiagnosed reports of gout. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). In the current appeal, the Veteran is clearly competent to report the pain he experiences and to recognize swelling in his own joints. Additionally, considering that the Veteran has now had gout for many years, he is competent to report that the symptoms he had during service were similar to the symptoms he has during his current gout flare-ups. As such, the examiner must consider the Veteran’s lay statements in arriving at an opinion regarding the etiology of the Veteran’s gout. It is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes probative value to a medical opinion. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). Here, the examiners did not address information in the service treatment records that may be indicative of the Veteran having gout in service and wholly disregarded his reports. Also, service connection has been granted for multiple orthopedic conditions. These disabilities should be considered in determining whether the Veteran’s diagnosed gout was caused, or aggravated, by a service-connected condition. A medical opinion is inadequate when it does not consider all raised theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran has raised the issue, and contends, that if service-connection for his gout is not established on a direct basis, his gout may be related to a service-connected condition. For the foregoing reasons the Veteran must be provided a new VA examination for his gout. Accordingly, this matter is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA health care providers who treated him for his gout. After securing the necessary releases, obtain copies of pertinent records which are not already of record. Any outstanding, relevant, VA medical records should be obtained and associated with the claims file. 2. Then, schedule the Veteran for an appropriate examination to determine the nature and etiology of his gout. The examiner should obtain a complete, pertinent, history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to the Veteran’s VA treatment records, lay assertions, and the pertinent medical evidence. Any testing deemed necessary should be conducted. Based on the examination and review of the record, the examiner should opine as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s diagnosed gout (1) had its clinical onset during active service or within one year after his separation from service; (2) is otherwise related to an event, injury or disease incurred in service; (3) was caused by any of his service-connected disabilities; or (4) was aggravated by any of his service-connected disabilities. The examiner is informed that the Veteran’s service-connected disabilities include: posttraumatic stress disorder (70%), pes planus with plantar fasciitis (50%), right and left knee strain with degenerative arthritis (10% each), lumbosacral strain (10%), left and right ankle strain (10% each), radiculopathy of the right and left lower extremities (10% each), and hypertension (0%). The examiner is advised that the term “aggravation” is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner is advised that the Veteran is competent to discuss symptoms and treatment and that such reports must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.