Citation Nr: 21069956 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-37 244 DATE: November 22, 2021 REMANDED Entitlement to service connection for gout, to include as secondary to diabetes mellitus, type II (DM II), is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1969 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). The appeal was previously before the Board in August 2020 and has since been returned for further appellate consideration. 1. Entitlement to service connection for gout, to include as secondary to DM II, is remanded. The Board regrets the delay, however additional development is required prior to adjudicating the claim for service connection for gout. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The issue was remanded in August 2020. The Board directed the RO to obtain a VA examination and opinion. The examiner was instructed to consider and discuss the medical treatise the Veteran submitted in June 2013. The Veteran was afforded a VA examination in May 2021 for the claimed gout. The examiner opined the Veteran's gout is less likely than not proximately due to or the result of his service-connected DM II. The examiner reasoned that the Veteran began having gout attacks in 1996, before the onset of his diabetes. The Board notes private treatment records document an assessment of gout in 1999 and the Veteran was diagnosed with DM II in 2012. However, the Board finds the May 2021 examiner's rationale is in direct contradiction to Frost v. Shulkin, 29 Vet. App. 131, 138-39 (2017), where the Court of Appeals for Veterans Claims (Court) held that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis and that the "primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Moreover, the May 2021 VA opinion is a mere restatement of the rationale which the Board previously found inadequate. Next, the VA examiner failed to address the medical treatise submitted by the Veteran which described research showing that DM II can cause gout. The August 2020 Board remand specifically instructed the examiner to consider and discuss the treatise the Veteran submitted in June 2013. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. Accordingly, remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disability on appeal. 2. Following the receipt of any outstanding records, obtain an addendum opinion regarding the etiology of his diagnosed gout. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. If an examination is deemed necessary, it shall be provided. Following a complete review of the record, the examiner is asked to provide the following opinion: Whether it is at least as likely as not (at least a 50 percent probability) that his gout is related to or had onset during the Veteran's military service. If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gout is proximately due to or the result of his service-connected diabetes mellitus, type II. In rendering the requested rationale, the examiner must note that it is not required that the gout is shown to be "predominantly" due to or result of diabetes mellitus, but rather whether there is any contributing degree of etiological relationship to diabetes mellitus, type II. If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gout is aggravated beyond natural progression by his service-connected diabetes mellitus, type II. In rendering the requested rationale, the examiner must note that it is not required that the gout is shown to be aggravated beyond natural progression "predominantly" by diabetes mellitus, type II, but rather whether there is any contributing degree of aggravation beyond natural progression by the service-connected diabetes mellitus, type II. The clinician must consider and discuss all the medical evidence of record, to include the medical treatise the Veteran submitted in June 2013. In providing all the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. A complete rationale must be provided for each opinion. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.