Citation Nr: 21021142 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-25 901 DATE: April 9, 2021 ORDER Entitlement to service connection for bilateral foot gout is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran’s bilateral foot gout began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral foot gout are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to February 1969, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in September 2020. The appellant, the Veteran’s wife, has been determined to be an appropriate substitute and the proper appellant in this case. An October 2019 Board decision remanded the Veteran’s claims for entitlement to service connection for tinnitus and entitlement to service connection for bilateral foot gout for further development. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Upon review, the Board finds that the remand directives have been complied with. Following the October 2019 Board remand, a February 2021 rating decision granted the claim for entitlement to service connection for tinnitus. This represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). As such, the only issue currently before the Board is entitlement to service connection for bilateral foot gout. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which a proper release was submitted. The duty to assist is not a one-way street. If an appellant desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the appellant is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Generally, to establish a right to compensation for a present disability a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection may be granted for “chronic diseases if the disease manifests to a compensable degree within service or within the presumptive period of one year after separation. 38 C.F.R. § 3.307 (a)(3). Gout is categorized as a chronic manifestation of “arthritis.” 38 U.S.C.A. § 1101 ; 38 C.F.R. § 3.309 (a), § 4.71(a) Diagnostic Code (DC) 5017. If the chronic disease manifested in service or within the presumptive period, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id. at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself “establishes the link, or nexus” to service and also confirms the existence of the chronic disease while in service or during a presumptive period). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis 1. Entitlement to service connection for bilateral foot gout. In his January 2017 fully developed claim, the Veteran alleged entitlement to service connection for bilateral foot gout because his gout began during active duty service. The evidence of record, including a January 2021 VA opinion as well as VA and private treatment records note that the Veteran had a current diagnosis of gout during the period on appeal. However, the record does not establish an in-service injury. During his December 1966 entrance examination, the Veteran reported a foot problem of a broken ankle two years prior to service. He did not report a history of gout, gout related symptoms or other foot abnormalities. The Veteran’s foot was noted as normal during the enlistment examination. Similarly, service treatment records do not note any complaints of foot problems in service. The Veteran’s February 1969 separation examination consisted of both a subjective report of medical history and an objective clinical evaluation. Subjectively, the Veteran denied having any foot trouble in his report of medical history. Objectively, the clinical evaluation noted normal feet. Post service the Veteran’s gout was initially diagnosed in March 2007 private treatment records in which the Veteran reported that the onset of his foot pain was gradual and had been occurring in a persistent pattern for one year. The Veteran did not report that his foot problems were related to military service. The physician noted that there had been no previous evaluations of the Veteran’s foot pain. While subsequent post-service treatment records note a diagnosis of gout, treatment records do not show any assertion by the Veteran that his gout symptoms began during military service. The preponderance of the evidence of record does not establish an in-service injury for the Veteran’s bilateral gout. While the Veteran is competent to report that he experienced foot troubles in service, he lacks the medical expertise necessary to diagnose gout. 38 C.F.R. § 3.159. As such he is not competent to establish that his gout began in service. Moreover, the Veteran’s contentions are not supported by the evidence of record which shows no complaints of or treatment for foot abnormalities during service. Accordingly, the Board affords more probative weight to the Veteran’s contemporaneous treatment records, rather than the Veteran’s 2017 contentions made in support of his claim for service connection. See Buchanan v. Nicholson, 451, F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that contemporaneous medical evidence can be considered and weight against a Veteran’s lay statements). Moreover, the record does not establish a nexus between the Veteran’s gout and his military service. A January 2021 VA opinion indicates that the Veteran’s gout is less likely than not related to the Veteran’s military service because the Veteran’s service treatment records are silent for gout during service and the Veteran’s gout was diagnosed 30 years post service. The Board affords probative weight to this opinion as it is consistent with and based on a review of the evidence of record which shows no gout in service and no diagnosis of gout prior to March 2007. As the record does not establish an in-service injury, manifestation of gout within a year of service, nor a nexus between the Veteran’s gout and military service, entitlement to service connection for bilateral foot gout is not warranted. (Continued on the next page)   Entitlement to service connection for bilateral foot gout is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish, 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.