Citation Nr: 21014374 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-48 380 DATE: March 12, 2021 ORDER Entitlement to service connection for gout is denied. REMANDED Entitlement to service connection for arthralgia is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to August 30, 2017, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has gout that began in service, or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for gout have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from January 1981 to June 1992, to include service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in February 2020, where the issues were remanded for additional development. They now return for further appellate review. The Board also remanded additional service connection claims for gastroenteritis, hypertension, and an acquired psychiatric disorder. In a subsequent rating decision by the RO, the claims were granted. As these grants of service connection represent the full benefit sought on appeal, they are no longer on appeal. Additional VA treatment records have been associated with the record since the last Supplemental Statement of the Case. However, these records are not relevant to the issue being decided below. Thus, initial review of the evidence by the Board with respect to the claim on appeal is appropriate. See 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1305(c). In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Service Connection for Gout Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that he has gout as a result of in-service events. As an initial matter, the record is unclear as to whether the Veteran has a current diagnosis of gout, or whether he had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Post-service treatment records document the Veteran reporting a history of gout. For example, VA treatment records from 2002 and 2004 indicate pain in the right foot. A June 2013 VA foot examination, while not diagnosing gout at that time, noted that the Veteran reported that gout was first diagnosed in the mid-to-late 1990s for which he takes medication. In December 2016, the Veteran reported a flare of gout the previous week to VA treatment providers. The Board also notes that service connection is in effect for residuals of a separate and distinct right foot injury, status post-surgical fusion, right metatarsophalangeal joint with residuals with painful plantar calluses and non-painful scar. As the Board noted in its previous remand, however, no VA examination or medical opinion was of record at the time with regard to the Veteran’s claimed gout. As it was unclear if the Veteran had a present gout disability and if there was a relationship between any gout and the service-connected right foot disability, the Board remanded the claim to afford him a VA examination to address the nature and etiology of his claimed disability, which was afforded in September 2020. The VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of pain and difficulty walking and did have a history of gout in the right foot, he did not have a current diagnosis of gout in either foot, with only his service-connected arthritis of the right foot noted upon examination. Regardless as to the presence of a current gout disability, the evidence is against a finding that any history of gout is related to an in-service event, injury, or disease. Service treatment records (STRs) show no complaints, diagnosis, or treatment related to gout. Only treatment related to the Veteran’s right metatarsophalangeal (MTP) joint and service-connected right foot arthritis are of record. As the Veteran reported other ailments during service, and gout problems are the type that a reasonable person would report, if the Veteran was experiencing problems with gout during service the Board would expect that he would have reported these problems to medical professionals. Post-service, a gout condition is not shown by medical evidence until approximately July 2004, many years after the Veteran’s separation from service. The Board notes that a VA foot examination was afforded to the Veteran for his in-service right MTP joint injury in November 2002. Neither a diagnosis of gout nor complaints of such by the Veteran are noted. As noted above, the Veteran presented for a VA examination in September 2020, at which time a diagnosis of gout was not shown in either lower extremity. The Board notes, however, the examiner nevertheless opined that it was less likely than not that any gout was related to service due to its post-service onset. The examiner also opined that any right foot gout would also not be secondary to his service-connected right foot disability, explaining that gout occurs as urate crystals grow in the joint, not due to any association with a degenerative process. The examiner found that gout had not been aggravated beyond baseline. The Board finds these opinions highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record, such as the absence of gout until many years after service, and there is no medical opinion or competent and credible evidence in significant conflict with the VA opinion. The Board has considered the Veteran’s statements, to include his assertions that he has a gout disability that is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain and inflammation; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). He is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. To the extent the Veteran asserts a continuity of gout symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with his medical history, which is absent gout for many years after service. Also, the Board notes that the Veteran has made conflicting statements about the onset of his gout. While he has reported an onset of gout in the 1990s to a June 2013 VA examiner, he reported to the September 2020 examiner that his gout began after 2001 surgery to repair the residuals of his in-service MTP injury. In any event, the Board ultimately assigns greater weight to the medical evidence of record, to include the findings of a trained medical professional who determined that the Veteran’s purported gout would less likely than not have begun in service or be related to his service-connected right foot disability. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. REASONS FOR REMAND While the Board regrets further delay, the Veteran’s remaining claims must once again be remanded for additional development. Service connection for arthralgia. The Veteran asserts that he has arthralgia as a result of in-service events, and testified that he experiences arthralgia in his back, shoulders, arms and legs. As the Board noted in its previous remand, the Veteran’s service records reflect joint pain, to include in the right foot on multiple occasions and the right thumb in October 1988. He also reported neck pain in July 1985 and again in December 1986. He experienced trauma to the left knee in July 1983, although this appears to be muscular as the assessment was bruised right quadricep tenderness. Post-service records document multiple site arthralgia in October 2014. As no VA medical opinion had been obtained with regard to the Veteran’s claimed arthralgia, the Board remanded the claim to afford him a VA examination to address the nature and etiology of his claimed arthralgia, which was provided in September 2020. The examiner provided a negative opinion that it was less likely than not that any arthralgia was related to service. Of note, the examiner diagnosed the Veteran with bilateral shoulder strain, a left foot strain, a lumbosacral strain with lower extremity radiculopathy, and a cervical strain with upper extremity radiculopathy. However, the Board notes that the examiner’s rationale for this opinion was based on his service treatment records being negative for these disabilities. As noted above, however, the Veteran’s STRs do reflect complaints of joint pain, including neck, back, and knee pain. Additionally, the record reflects that the Veteran served in Southwest Asia theater of operations during the Persian Gulf War. No examination or opinion is of record that address whether the Veteran’s complaints of joint pain are related to an undiagnosed illness or medically unexplained chronic multi-symptoms illness (such as fibromyalgia) under the provisions of 38 C.F.R. § 3.317. As such, an additional VA examination should be afforded to determine the nature and etiology of the Veteran’s arthralgia. Service connection for OSA. As the Veteran has asserted that his sleep apnea is related to his acquired psychiatric disorder and/or arthritis, his OSA claim was also previously remanded as it was inextricably intertwined with those claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran’s acquired psychiatric disorder claim was subsequently granted by the RO. The OSA claim remains intertwined with the arthralgia claim the Board is again remanding herein. On remand, a VA examination and opinion should be obtained regarding the nature and etiology of the Veteran’s OSA. TDIU prior to August 30, 2017. The issue of entitlement to a TDIU is inextricably intertwined with the Veteran’s remanded service-connection claims, as he has claimed unemployability as a result of some of the remanded disabilities. Castellano v. Shinseki, 25 Vet. App. 146, 161 (2011). While a TDIU was granted by the RO after the Veteran’s previous remand from August 30, 2017, the period prior remains on appeal. Thus, adjudication of the TDIU claim is deferred pending disposition of the aforementioned service connection claims. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify any outstanding treatment records relevant to remaining claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability manifested by arthralgia onset during service or is otherwise related to an in-service injury, event, or disease, to include complaints of joint pain on multiple occasions during service as well as a left knee injury in 1983. The examiner should address whether the Veteran has any objective signs of a disability manifesting as arthralgia that are not accounted for by any diagnosed condition. If so, please list each sign/symptom and address the level of impairment and whether it is at least as likely as not that any sign/symptom is related to an undiagnosed illness or to a medically unexplained chronic multi-symptom illness (such as fibromyalgia) as a result of the Veteran’s service in the Persian Gulf pursuant to 38 C.F.R. § 3.317. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current sleep apnea onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran’s report that during service he had trouble sleeping, was told he snored, and occasionally fell asleep at his desk. The examiner should also address whether any current sleep apnea is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected depressive disorder or by his arthralgias. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.