Citation Nr: 21010897 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 05-06 303 DATE: February 26, 2021 REMANDED Entitlement to service connection for gout of the hands and fingers (“bilateral hand disability”) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to July 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2007 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2018 decision, the Board denied the issue on appeal and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court granted the Joint Motion for Partial Remand (Joint Motion) and vacated the January 2018 Board decision that denied service connection for a bilateral hand disability. The case was returned to the Board for compliance with the terms of the Joint Motion. In the Joint Motion, the parties agreed that the Board erred in denying the claim, as the duty to assist was not satisfied because VA did not procure an adequate examination. The Board, in part, relied on an April 2017 VA opinion which the Joint Motion found to be inadequate because it did not contain a sufficient rationale in support of the opinion with respect to aggravation. The Board notes that a September 2020 docketing correspondence was not copied to the Veteran’s representative. Nonetheless, an earlier September 2020 correspondence was copied to Vietnam Veterans of American notifying the Veteran that his appeal had been certified to the Board. In addition, a February 2021 correspondence was sent to Vietnam Veterans of America informing them that the deadline to submit an Informal Hearing Presentation was 120 days for all cases certified to the Board. The correspondence summarized that the Board had previously notified their organization, the appeal had been assigned to them for over the 120 days, and to date an Informal Hearing Presentation had not been received. They were notified that the case would proceed to adjudication. Furthermore, the Board emphasizes that the Veteran did not request to testify at a Board hearing on his February 2008 VA Form 9. The appeal was subsequently recertified to the Board in September 2020, with the Veteran receiving written notice that his appeal had been formally placed on the Board docket. This September 2020 correspondence notified the Veteran that he had 90 days from the date of the correspondence or until the Board issued a decision in his appeal (whichever occurred first) to submit additional argument or evidence. See generally, 38 C.F.R. § 20.1304. However, it was not until February 2021, approximately 140 days later, that the Board received correspondence from the Veteran’s representative requesting that a Board videoconference hearing be scheduled. If a hearing request is received more than 90 days after notice of certification, then the appellant must show good cause for the delay. 38 C.F.R. § 20.1304(b). Here, the request for a hearing was not received within 90 days the date the Veteran was notified of certification of his appeal to the Board. Further, he was informed of this 90-day period in the September 2020 correspondence, and good cause has not been offered for the delay. Consequently, the Board does not accept the delayed hearing request. In April 2020, the Veteran submitted a request to advance his appeal on the docket due to extreme financial hardship, including large amount of credit card and personal debt. A motion to advance a case on the docket may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. See 38 C.F.R. § 20.902(c). The Board finds the Veteran meets the requirements of 38 C.F.R. § 20.902(c). Therefore, the Veteran's motion is granted. The Veteran seeks entitlement to service connection for gout of the bilateral hands and fingers. Unfortunately, the Board finds that additional development must be undertaken before this claim can be adjudicated on the merits. As discussed above, the Joint Motion found that an April 2017 VA examination relied upon by the Board in denying the Veteran’s claim of entitlement to service connection for gout of the hands and fingers was inadequate. In particular, the Joint Motion found that, while the April 2017 VA examiner opined that the Veteran’s service-connected finger disabilities did not aggravate his gouty arthritis, noting that the service-connected disabilities “occurred prior to the development of gout,” the opinion was inadequate because it did not contain a rationale in support of the opinion with respect to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138-40 (2013) (noting that in order to fully inform the Board’s evaluation, a medical opinion regarding secondary service connection must address both causation and aggravation). In response, in March 2019, the Board remanded the claim so that an adequate VA medical opinion could be obtained. Specifically, the March 2019 Remand requested that a VA examiner provide opinions as to: whether it was at least as likely as not that the bilateral hand disability manifested during active service, or was otherwise related to an event, injury, or disease incurred during active service; whether it was at least as likely as not that the bilateral hand disability was proximately due to or caused by the Veteran’s service-connected disabilities; and whether it was at least as likely as not that the bilateral hand disability, was aggravated (worsened in severity beyond a natural progression) by his service-connected disabilities. Pursuant to the Board’s March 2019 Remand instructions, the Veteran was provided with a VA Non-Degenerative Arthritis examination and a VA Hand and Finger Conditions examination in January 2020, at which time he was diagnosed as having gout of the bilateral hands. Additionally, accompanying December 2019 X-rays revealed, “Mild polyarticular degenerative changes of both wrists and hands,” which the VA examination report acknowledged as diagnostic findings of degenerative or traumatic arthritis of the bilateral hands. However, the VA examiner then concluded that the Veteran’s diagnosed gout of the bilateral hands was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner explained that, “Service treatment records were silent and no medical notes observed in service treatment records. Claimant's claimed condition shows no continuity of care and was documented several years after service.” The VA examiner also opined that the Veteran’s diagnosed gout of the bilateral hands was less likely than not proximately due to or the result of a service-connected condition. In support of that opinion, the VA examiner explained that, “Service treatment records were silent and no medical notes observed in service treatment records. Claimant's claimed condition shows no continuity of care and was documented several years after service. Based on available records reviewed and current evaluation; therefore, I opine the claimant’s claimed condition [. . .] is less likely than not the result of the Veteran's service-connected disabilities, to include service-connected finger disabilities, limitation of motion of thumbs, limitation of motion of index or long fingers. Gout is the only diagnosis provided at this time based on what was noted on both Gout and Hand DBQS. There is only evidence of Gout with joint involvement in hands, as such there is no other hand/finger condition for which to link any other condition to, and as such a secondary/aggravation opinion is not applicable.” Finally, the VA examiner opined that the Veteran’s diagnosed gout of the bilateral hands was not at least as likely as not aggravated beyond its natural progression by a service-connected disability. In support of this conclusion, the VA examiner simply explained again that, “Diagnosis of gout was made after service and based on available records reviewed and current evaluation; therefore, I opine the claimant’s claimed condition [. . .] is less likely than not caused by and/or aggravated beyond its natural progression by the Veteran's service connected finger disabilities, Limitation of motion of thumbs, limitation of motion of index or long fingers. Gout is the only diagnosis provided at this time based on what was noted on both Gout and Hand DBQS. There is only evidence of Gout with joint involvement in hands, as such there is no other hand/finger condition for which to link any other condition to, and as such a secondary/aggravation opinion is not applicable.” Unfortunately, the Board again finds that the VA opinion and the rationale proffered to support it are inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). To this point, the Board notes that the Veteran is currently service connected for the following 34 disabilities: right upper extremity radiculopathy; left knee internal derangement with arthritis; right knee internal derangement with traumatic arthritis; cervical spine intervertebral disc syndrome with post-operative myelopathy; surgical scar, posterior neck, status post two cervical fusions; left upper extremity radiculopathy; left knee instability; right knee instability; right lower extremity radiculopathy; left lower extremity radiculopathy; fracture left ring finger; postoperative right ankle; postoperative deviated nasal septum; hypertension; tinea ungium of both great toes; plantar fasciitis of the left heel; right thumb arthritis; left thumb arthritis; left long finger arthritis; painful surgical scar, posterior neck, status post two cervical fusions; history of bursitis/trauma left elbow olecranon spur; history of bursitis/trauma right elbow olecranon spur; pseudofolliculitis barbae; erectile dysfunction; left index finger arthritis; right index finger arthritis; right long finger arthritis; right ring finger arthritis; right little finger arthritis; left little finger arthritis; left ring finger arthritis, and surgical scar, left knee status post meniscectomy. As such, a VA opinion generally concluding that the Veteran’s diagnosed gout of the bilateral hands was not caused or aggravated by a service-connected disability simply because “[t]here is only evidence of Gout with joint involvement in hands, as such there is no other hand/finger condition for which to link any other condition to, and as such a secondary/aggravation opinion is not applicable” is inadequate. Specifically, the VA examiner failed to meaningfully discuss the Veteran’s service-connected degenerative arthritis of the fingers, confirmed by X-rays conducted in December 2019 and referenced in the January 2020 VA examination report, and whether those service-connected disabilities caused or aggravated the Veteran’s diagnosed gout of the bilateral hands. The Board emphasizes that the degenerative arthritis found on the December 2019 X-rays and an inflammatory arthritis such as gout are two distinct disease processes. Furthermore, the VA examiner failed to discuss whether the Veteran’s service-connected hypertension, which is a known risk factor for the development of gout, caused or aggravated his diagnosed gout of the bilateral hands. As such, this matter must again be remanded so that an adequate VA medical opinion as to the probable etiology of the Veteran’s gout can be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. The Veteran should also be afforded an opportunity to identify and/or submit any outstanding private treatment records. 2. Return the claims file to the VA examiner who conducted the January 2020 VA examinations, if available, to obtain an addendum opinion regarding the likely etiology of the Veteran’s diagnosed gout of the bilateral hands. If the original examiner is not available, then forward the claims file to an appropriate examiner to obtain the requested opinions. If a new examination is deemed necessary, then one should be scheduled to determine the likely etiology of the Veteran’s diagnosed gout of the bilateral hands. Following review of the claims file, the VA examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed gout of the bilateral hands is proximately due to or caused by any of his service-connected disabilities. If the above opinion is negative, then the VA examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s gout of the bilateral hands was aggravated (worsened in severity beyond a natural progression) by any of his service-connected disabilities. A complete rationale must be provided for any opinion offered. In providing these opinions, the VA examiner is asked to consider to potential impact of all of the Veteran’s service-connected disabilities on the development of his gout, with an emphasis on his service-connected degenerative arthritis of the fingers (documented in December 2019 X-rays) as well as his service-connected hypertension (which is a known risk factor for the development of gout). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.