Citation Nr: 21062041 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 21-00 504 DATE: October 6, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for gout is reopened. To this extent only the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened. To this extent only the claim is granted. REMANDED Entitlement to service connection for gout is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In an unappealed and final rating decision in June 2011, the Regional Office (RO) denied claims for gout and hypertension. 2. Evidence received since the June 2011 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for gout and hypertension. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim for entitlement to service connection for gout is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. 2. New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1965 to September 1968, including service in the Republic of Vietnam. His exposure to herbicide agents during service has been conceded. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2017 decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran's representative submitted a written brief pertaining to the service connection claim for gout, as well as a claim seeking an earlier effective date for the award of a total disability rating based on individual unemployability (TDIU). As the TDIU claim is not currently on appeal, the Board does not have jurisdiction over the claim and will not be addressed herein. The Board notes that the Veteran has submitted a Higher-Level Review for that issue, which will be addressed by the RO. New and material evidence The Board must determine whether new and material evidence has been presented before it can reopen a claim. 38 C.F.R. § 20.1105. The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered, regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). New and material evidence having been received, the claims for entitlement to service connection for gout and hypertension are reopened. In June 2011, the RO denied entitlement to service connection for gout, hypertension, and atrial fibrillation (AFIB). The Veteran filed a Notice of Disagreement (NOD) in September 2011, and a Statement of the Case (SOC) was issued in November 2012, confirming the denials. The Veteran did not appeal the case to the Board, and the decision became final in January 2013. In July 2017, the Veteran filed new claims for service connection for gout, hypertension, and AFIB. In August 2017, the RO denied reopening the claims, finding that no new and material evidence had been submitted. In October 2017, the Veteran filed a NOD, and with it included medical articles discussing links between diabetes and gout, as well as diabetes and hypertension. Later, the Veteran also submitted additional medical records that includes documentation of treatment for hypertension, gout, and AFIB. In July 2020 and May 2021, the Veteran was given new VA medical examinations for the claimed conditions. In March 2021, the RO issued a SOC confirming the denial of service connection for gout and hypertension; a separate rating decision did grant service connection for AFIB, and that issue is no longer in contention. The Board finds that evidence submitted after January 2013medical records, medical literature, and VA examinationsis both new and relates to an unestablished fact necessary to substantiate the claims. See 38 C.F.R. § 3.156. Therefore, the evidence is new and material. Accordingly, the claims for entitlement to service connection for gout and hypertension are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND In July 2020, the Veteran was given VA examinations to determine the etiology of his gout and hypertension. A second VA examination for gout was conducted in May 2021. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The July 2020 VA examinations found that the Veteran's gout and hypertension were less likely than not caused by his service-connected diabetes mellitus, as both conditions were diagnosed years before he developed diabetes. The examiner found that his gout was less likely than not aggravated by diabetes, because "lab work throughout the medical record is negative for evidence of decreased kidney functions," the mechanism by which diabetes can aggravate gout. The examiner also found that hypertension was less likely than not aggravated by diabetes, as the Veteran's hypertension had remained "unchanged and stable." The May 2021 VA examination was in response to a request to evaluate whether the Veteran's gout was aggravated by his service-connected depressive disorder, e.g., by alcohol abuse associated with his depressive disorder. (The Board notes that, while service connection may be granted for a disability related to substance abuse, compensation may not be paid under such circumstances.) The May 2021 examiner stated that medical evidence was not sufficient to establish a baseline level of severity for the Veteran's gout. However, the examiner said that the July 2020 examination "demonstrates bilateral great toe pain which has not progressed... This falls within the projected natural history of the condition and does not represent aggravation." These VA medical opinions are substantially adequate regarding the issue of secondary service connection; however, they do not address direct service connection at all, nor does any other examination of record. While the Veteran did submit medical evidence supporting a correlation between diabetes mellitus and his claimed conditions, he never explicitly stated that his theory of entitlement was limited to secondary service connection. The examiners, and the RO, should have considered whether the Veteran's claimed conditions were directly related to an in-service event or injuryparticularly, his conceded exposure to herbicide agents. Furthermore, since the Veteran has been granted service connection for AFIB since his last VA examination for hypertension, it would be appropriate to schedule a new examination evaluating whether his hypertension was caused or aggravated by AFIB. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's gout. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. After reviewing the entire claims file, the examiner should answer the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's gout is related to an in-service event, injury, or disease? The examiner should specifically address the Veteran's conceded exposure to herbicide agents. (b) Is it at least as likely as not that the Veteran's gout had its onset during service? (c) Is it at least as likely as not that the Veteran's gout was caused or aggravated by any service-connected condition, to include depressive disorder, diabetes mellitus, and atrial fibrillation? The examiner should address medical literature submitted with the Veteran's October 2017 Notice of Disagreement, and medical records showing flare-ups in the severity of his gout in 2007. (d) If the Veteran's gout is unrelated to his military service, or to any service-connected condition, what is its likely etiology? The examiner must provide a complete rationale for all opinions, supported by evidence and citing any records or medical literature relied upon. If any of the above requested opinions cannot be made without resorting to speculation, the examiner must explain why. 2. Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's hypertension. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. After reviewing the entire claims file, the examiner should answer the following: (e) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is related to an in-service event, injury, or disease? The examiner should specifically address the Veteran's conceded exposure to herbicide agents. (f) Is it at least as likely as not that the Veteran's hypertension had its onset during service, or within one year of separation? (g) Is it at least as likely as not that the Veteran's hypertension was caused or aggravated by any service-connected condition, to include depressive disorder, diabetes mellitus, and atrial fibrillation? The examiner should address medical literature submitted with the Veteran's October 2017 Notice of Disagreement. (h) If the Veteran's hypertension is unrelated to his military service, or to any service-connected condition, what is its likely etiology? The examiner must provide a complete rationale for all opinions, supported by evidence and citing any records or medical literature relied upon. If any of the above requested opinions cannot be made without resorting to speculation, the examiner must explain why. (Continued on the next page) 3. This case has been Advanced on the Docket. The Agency of Original Jurisdiction (AOJ) must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If an opinion is deficient in any manner, the AOJ must undertake immediate corrective action before returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.