Citation Nr: 20006128 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 19-08 918A DATE: January 28, 2020 ORDER New and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for gout. Service connection for gout, as secondary to obstructive sleep apnea, is granted. FINDINGS OF FACT 1. A December 2015 rating decision denied entitlement to service connection for gout. The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance. 2. Evidence added to the record more than one year after the December 2015 rating decision has not been previously considered and relates to an unestablished fact necessary to substantiate the Veteran’s claim for entitlement to service connection for gout. 3. The Veteran’s gout has been aggravated by his obstructive sleep apnea. CONCLUSIONS OF LAW 1. The December 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for gout. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for gout, as secondary to obstructive sleep apnea, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1991 to May 1998 and from January 2005 to April 2006, including service in Afghanistan, with additional National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 decision by a Department of Veterans Affairs (VA) office. The Board acknowledges that the Veteran has sought review of several other VA decisions. See, e.g., June 2018 Notice of Disagreement (NOD); September 2018 NOD; December 2019 VA Form 20-0996. These issues are not presently before the Board and thus they will not be addressed in this decision. The Board acknowledges that additional relevant evidence has been received since the February 2019 Statement of the Case (SOC). However, as the instant decision is a full grant of the benefit sought on appeal, the Veteran is not prejudiced. 1. New and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for gout. In December 2015, the RO denied service connection for gout. The Veteran did not appeal that determination, and new and material evidence was not received within one year of the issuance of the decision. Moreover, the Veteran’s reserve treatment records, including his 2012 physical profile for gout, were of record at the time that decision was issued. Thus, the December 2015 rating decision is final. A final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Evidence associated with the record more than one year after the issuance of the December 2015 rating decision includes a November 2018 Medical Opinion by Dr. C.S. linking an increase in the severity of the Veteran’s gout to his obstructive sleep apnea and an article referencing a study suggesting a relationship between obstructive sleep apnea and gout, as well as medical evidence pertaining to the Veteran’s current gout and obstructive sleep apnea. Because this evidence had not been previously submitted and because it relates to an unestablished fact necessary to substantiate the Veteran’s claim, it is considered new and material, and the claim is reopened. 2. Service connection for gout, as secondary to obstructive sleep apnea, is granted. The Veteran asserts that his gout has been aggravated by his service-connected obstructive sleep apnea. The Board agrees, and as the Veteran does not advance a theory of direct service connection, the Board will limit this discussion to secondary service connection. Secondary service connection is warranted for a disability that is proximately due to or has been aggravated by a service-connected disability. In September 2015, an examiner diagnosed the Veteran with gout based on his report of treatment while in the National Guard. He noted that the Veteran had not had any recent gout flares. Although the Veteran reported a diagnosis in 2013, his subsequently-obtained reserve treatment records showed a 2012 physical profile for gout. The examiner also diagnosed the Veteran with obstructive sleep apnea based on his report of a 2014 sleep study and noted the Veteran’s report that his use of a CPAP machine had improved his symptoms. See September 2015 Examination Reports. The examiner opined that the Veteran’s gout and obstructive sleep apnea were less likely than not due to his active duty service. The Veteran was awarded service connection for posttraumatic stress disorder (PTSD) in April 2017. In September 2018, he was awarded service connection for obstructive sleep apnea as secondary to PTSD. In November 2018, the Veteran submitted an article that reported that a recent medical study showed an association between sleep apnea and gout, and that the researches hypothesized that periodic low levels of oxygen caused by sleep apnea lead to overproduction of uric acid, causing gout. See November 2018 Supplement to NOD. The Veteran also submitted a medical opinion from his private physician, Dr. C.S., who explained that he had treated the Veteran since January 2017 and was familiar with the history of the Veteran’s disabilities, including PTSD, sleep apnea, and gout. Dr. C.S. stated that he had reviewed the Veteran’s medical records and his physical profile, including his PTSD, obstructive sleep apnea, and gout during his military (National Guard) career. Dr. C.S. stated that the Veteran was diagnosed with gout in January 2006 and his sleep apnea was not diagnosed until 2015, and that he had reviewed evidence-based studies showing that gout is a “definite proven condition aggravated by obstructive sleep apnea” and that it was at least as likely as not that the Veteran’s gout was aggravated by his obstructive sleep apnea. See November 2018 Dr. C.S. Opinion. An October 2018 examination report noted that the Veteran’s obstructive sleep apnea had worsened and that his CPAP machine needed to be calibrated. A November 2, 2018 VA treatment note indicated “no attacks” of gout, although it did not specify a time frame, and further noted that his sleep apnea was worsening. A November 20, 2018 VA treatment note indicated that the Veteran’s CPAP machine had been adjusted due to ineffective treatment. A September 10, 2019 VA treatment note showed that the Veteran had had three gout attacks since November 2018. Here, the probative evidence of record shows that the Veteran’s gout has been aggravated by his obstructive sleep apnea. In this regard, the opinion of the September 2015 examiner addressed direct service connection and does not weigh against secondary service connection. While Dr. C.S. did not reference any specific medical study, this does not render his opinion inadequate and the Board will not substitute its medical judgment for that of Dr. C.S. However, the Board observes that the Veteran reported a difficulty with his CPAP machine and a worsening in his obstructive sleep apnea, followed by evidence showing an increase in gout attacks over his September 2015 baseline, which is logically consistent with the theory set forth in the article submitted by the Veteran. Although the November 2, 2018 VA treatment note reported “no attacks,” this does not give a time frame and thus it does not impeach Dr. C.S.’s report of five or six flare-ups yearly or the September 2019 report of three flare-ups since November 2018. Moreover, while the diagnosis of gout in 2006 that was provided by Dr. C.S. differs from other medical evidence showing a later date of diagnosis, this discrepancy is inapposite, as the key question in this appeal is not whether the Veteran’s obstructive sleep apnea preceded his gout, see February 2019 SOC at 21, but rather whether the Veteran’s gout increased in severity due to obstructive sleep apnea. As the probative evidence shows such an increase, secondary service connection based on aggravation is warranted. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.