Citation Nr: 21013652 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 04-11 940A DATE: March 10, 2021 REMANDED Entitlement to service connection for a bilateral leg disorder other than already service-connected bilateral knee and ankle disability, diagnosed as gout, is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1967 to September 1969. His service included a tour of duty in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The case first came to the Board in September 2006 and was remanded to the Agency of Original Jurisdiction (AOJ) for further development. In April 2012, the case returned to the Board. At that time, the Veteran’s claims were decided on the merits. In September 2013, pursuant to a settlement agreement in the case of National Org. of Veterans’ Advocates Inc. v Secretary of Veterans Affairs 725 F 3d 1312 (Fed Cir 2013), the Board sent the Veteran a letter notifying him of an opportunity to receive a new decision from the Board that would correct any potential due process error relating to the duties of the VLJ that conducted the August 2006 hearing pursuant to Bryant v. Shinseki, 23 Vet. App. 488 (2010). In September 2013, the Veteran responded that he wished to have the prior decision vacated and a new one issued in its place. In June 2014, the Board issued an Order to Vacate. Thereafter, in November 2014, the Veteran testified at a Board hearing. A transcript of that hearing is of record. In January 2015, the case returned to the Board. At that time, the Board remanded the Veteran’s claim for further development. The Board further notes that service connection for bilateral knee disabilities was granted in an April 2015 rating decision. In October 2016, the case returned to the Board. At that time, the Board denied a rating for tinea versicolor in excess of 10 percent prior to January 15, 2009, and in excess of 30 percent after that date. In addition, the Board remanded the Veteran’s claim for bilateral leg disabilities for an additional examination. In June 2017, the case returned to the Board. At that time, the Board found the Veteran’s most recent VA leg examination to be inadequate and ordered an additional examination. In a December 2017 rating decision, the RO granted service connection for left knee instability and a left knee surgical scar. In an August 2019 rating decision, the RO granted service connection for left ankle arthritis and a right ankle strain. In November 2019, the Board denied entitlement to service connection for a bilateral leg disorder other than already service-connected bilateral knee and ankle disability, diagnosed as gout. Following the Board’s decision, the Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2020, the Secretary of VA and a representative of the Veteran filed a Joint Motion for Remand (JMR). The parties to the JMR agreed that VA failed in its duty to assist because VA made two attempts in 1970 to acquire service treatment records from Fort Polk and the record did not appear to contain a finding that such records do not exist, or that further efforts to obtain such records would be futile. In addition, the parties agreed that the Board erred when the Board relied on an inadequate examination. The parties to the JMR further agreed that the July 2019 VA medical examiner’s opinion was inadequate because the examiner relied on an inaccurate set of facts. Specifically, the examiner stated that the Veteran had a history of gout from 2012; however, the record reflected that the Veteran was experiencing gout in February 2001. 1. Entitlement to service connection for a bilateral leg disorder other than already service-connected bilateral knee and ankle disability, diagnosed as gout, is remanded. In the October 2020 JMR, the parties agreed that the Board failed to address whether VA had secured the Veteran’s entire service treatment record and also agreed that the Board erred when it relied on an inadequate examination. As a result, the Board finds that additional development is required prior to the Board’s further consideration of the claim on appeal. The matters are REMANDED for the following action: 1. Associate with the claims file the Veteran's contemporaneous VA treatment records from August 6, 2019, to the present. 2. The RO should take all necessary steps to ensure that the Veteran’s entire service treatment history, to include records from Fort Polk, have been associated with the Veteran’s claims file. A formal finding should be associated with the Veteran’s claims file that the Veteran’s service medical records are complete and that any further attempts to associate service treatment records with the Veteran’s claims file would be futile. 3. Schedule the Veteran for a VA examination regarding his bilateral leg disability. After a review of the claims file and an examination of the Veteran, the examiner should provide answers to the following questions: (A). Does the Veteran currently have a diagnosis for his bilateral leg disorder other than his already service-connected bilateral knee arthritis, to include gout? For each diagnosis found, please answer the following questions: (B). Is it as least as likely as not that the bilateral leg disorder had its onset while the Veteran was on active duty? (C). Is it at least as likely as not that the bilateral leg disorder manifested itself in the first post-service year? (D). Is it as least as likely as not that the bilateral leg disorder is a result of a service-connected disability or a medication prescribed for a service-connected disability? (E). Is it as least as likely as not that the claimed bilateral leg disorder was aggravated by any service-connected disability? (F). Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities caused or aggravated the Veteran’s obesity? If so, is it at least as likely as not (50 percent or greater probability) that such obesity/aggravation of obesity was a “substantial factor” in causing him to develop a bilateral leg disorder, to include gout? If so, is it at least as likely as not (50 percent or greater probability) that a bilateral leg disorder, to include gout, would not have occurred but for obesity caused or aggravated by his service-connected disabilities? The examiner’s opinion should discuss the onset of the Veteran’s gout prior to 2012, to as far back as February 2001. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.