Citation Nr: 21026473 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-27 160 DATE: May 3, 2021 ORDER Entitlement to service connection for gout, to include on a secondary basis, is denied. Entitlement to service connection for hypertension, to include on a secondary basis, is denied. FINDINGS OF FACT 1. The Veteran's gout did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service or to any of his service-connected disabilities. 2. The Veteran's hypertension did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service or to any of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for gout have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to August 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran and his wife testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, the Board, in pertinent part, denied the Veteran's claims of entitlement to service connection for hypertension and gout in a June 2019 decision. The Veteran appealed the June 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted the parties' Joint Motion for Partial Remand (JMPR) vacating and remanding the portions of the June 2019 Board decision that denied entitlement to service connection for gout and hypertension. See June 2020 CAVC Decision. The Veteran's claims were last before the Board in December 2020, when they were remanded for additional development. In addition, in the December 2020 decision, the Board found that the issue of entitlement to service connection for residuals of a MRSA infection had been raised by the record but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As such, the Board referred the issue to the AOJ for appropriate action. See December 2020 BVA Decision. A March 2021 internal VA memorandum indicates that the issue of entitlement to service connection for residuals of a MRSA infection required immediate attention by the AOJ; that issue is still pending development and has yet to be addressed by the AOJ. See March 2021 Correspondence. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for gout, to include on a secondary basis, is denied. The Veteran states that his diagnosed gout is caused by exposure to asbestos and other chemicals during his active duty service. In the July 2015 NOD, the Veteran reported that he was exposed to asbestos, hazardous waste, lead based paint, radioactive materials, and other toxins while he was assigned to the Vents and Voids division on the USS Independence, CVA 62, from February to September 1972. See July 2015 NOD. Alternatively, the Veteran has stated that his diagnosed gout may have been caused or aggravated by his hypertension and other cardiovascular diseases, diabetes mellitus, or kidney diseases, which include diabetic nephropathy. See October 2016 VA Form 9. The Veteran's STRs are silent for any findings or diagnoses of gout. See July 2014 STR Medical. A review of the post-service treatment records shows that the Veteran was diagnosed with gout with tophi in March 2012. See June 2016 Medical Treatment Record Non-Government Facility. VA obtained a medical opinion in February 2021. After performing a review of the evidence of record, the examiner opined that it was less likely than not that the Veteran's diagnosed gout was proximately due to or the result of his service-connected disabilities. In this regard, the examiner noted that the Veteran had been diagnosed with tophaceous gout which was caused by monosodium urinate crystals and that he was service-connected for diabetes mellitus and secondary disabilities. The examiner further acknowledged that the medical literature indicated that diabetes mellitus could exacerbate an existing gout condition but did not show a "cause and effect" association between gout and diabetes mellitus and its secondary conditions. As such, the examiner determined that the Veteran's gout was not etiologically related to his service-connected disabilities. In addition, the examiner opined that it was less likely than not that the Veteran's diagnosed gout was aggravated beyond its natural progression by his service-connected disabilities. In this regard, the examiner noted that an October 2020 rheumatology note showed that the Veteran was doing well and that his tophi had been getting smaller with medication. In addition, the examiner noted that the Veteran's service-connected diabetes mellitus was under control and that there was no medical evidence that indicated that the Veteran's gout was aggravated thereby. To the contrary, the examiner found that the Veteran's diagnosed gout appeared to be improving. See March 2021 CAPRI. After a review of the evidence of record, the Board finds that service connection for gout is not warranted. In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, the post-service treatment records show that the Veteran was diagnosed with gout with tophi in March 2012. See June 2016 Medical Treatment Record Non-Government Facility. Accordingly, the only question that remains is whether the Veteran's diagnosed gout is related to service. As to whether the Veteran's diagnosed gout is related to service, the Board finds the February 2021 VA opinion to be the most probative evidence of record. To this end, after reviewing the evidence of record, the February 2021 VA examiner opined that it was less likely than not that the Veteran's diagnosed gout was caused or aggravated by his service-connected disabilities. The Board finds that the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided an adequate supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Importantly, there is no medical evidence to the contrary. The Board recognizes that the medical opinions of record do not address whether the Veteran's gout was caused by exposure to asbestos and other chemicals during his active duty service. However, the Board finds that there is no competent evidence showing that the Veteran's gout may be related to his claimed in-service exposure. As such, the Board finds that the Veteran's claim does not meet the low threshold requirements of McLendon, and therefore VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (explaining that something more than conclusory, generalized statements is needed to trigger the VA's duty to assist); Duenas v. Principi, 18 Vet. App. 512, 517 (2004). The Board further recognizes the Veteran's assertion that his gout is etiologically related to his active duty service. However, as a layperson without any demonstrated expertise concerning the etiology of his claimed disability, this general assertion may not be afforded more than minimal probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board concludes that any lay assertions by the Veteran in the present case are outweighed by the medical evidence of record, including the February 2021 VA opinion. As stated above, the examiner has training, knowledge, and expertise on which she relied to form her opinion and she provided a persuasive rationale. Importantly, as stated above, there is no competent medical evidence to the contrary. Based on the foregoing, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for gout. The claim is denied. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Entitlement to service connection for hypertension, to include on a secondary basis, is denied. The Veteran states that his diagnosed hypertension is caused by exposure to asbestos and other chemicals during his active duty service. In the July 2015 NOD, the Veteran reported that he was exposed to asbestos, hazardous waste, lead based paint, radioactive materials, and other toxins while he was assigned to the Vents and Voids division on the USS Independence, CVA 62, from February to September 1972. In this regard, the Veteran reported that the Vents and Voids division was responsible for opening, cleaning, repairing, painting, and resealing all the ship's voids and for cleaning and renovating the ship's ventilation system. The Veteran reported that he was in daily contact with asbestos and that he was exposed to many halocarbons, to include Freon and Isotron, while cleaning and renovating the vessel's ventilation system. He further stated that the Vents and Voids division was ordered to remain on the ship and to continue working while Marines offloaded nuclear weapons. To this end, the Veteran reported that he was exposed to radiation because protective equipment was not provided to Vents and Voids personnel. See July 2015 NOD. Alternatively, the Veteran has stated that his diagnosed hypertension may have been caused or aggravated by his cardiovascular diseases, diabetes mellitus, or kidney diseases, which include diabetic nephropathy. See October 2016 VA Form 9. A review of the Veteran's service personnel records (SPRs) shows an enlisted performance evaluation for the period from May to August 1972, which confirms that the Veteran was assigned to the vents and voids division on the USS Independence, CVA-62, from April 1972. See July 2014 Military Personnel Record. A review of the service treatment records (STRs) shows a March 1968 enlistment report of medical examination that notes a blood pressure reading of 136/80, and the examiner found the Veteran's heart and vascular system to be normal. Similarly, the August 1972 separation report of medical examination shows a blood pressure reading of 134/82, and the Veteran's heart and vascular system were found to be normal. See July 2014 STR Medical. In summary, there is no showing of hypertension in the STRs. A review of the post-service treatment records shows that the Veteran was diagnosed with hypertension in March 2012. See July 2014 Medical Treatment Record Non-Government Facility. The Veteran underwent a VA examination for hypertension in January 2021. The examiner noted that the Veteran had been diagnosed with hypertension. After reviewing the evidence of record and examining the Veteran, the examiner opined that it was less likely than not that the Veteran's hypertension was proximately due to or the result of his service-connected disability. In support of her opinion, the examiner noted drinking too much alcohol was a known cause of hypertension and that the Veteran has a prolonged history of alcohol abuse since his 20s. The examiner acknowledged that diabetes could also cause hypertension, but noted that multiple kidney function readings, to include eGFR, BUN, and Cr, were normal when the Veteran was diagnosed with diabetes mellitus and hypertension. Thus, the examiner found that it would be difficult to find that it was more likely that the Veteran's hypertension was related to his diabetes as both diseases were diagnosed at the same time. In this regard, the examiner noted that the Veteran's microalbumin urine was elevated at the time of his diabetes diagnosis, which was expected as microalbumin could fluctuate with control of diabetes and was not considered a cause of hypertension. In addition, the examiner noted that prolonged alcohol abuse also seemed to play a significant role in his diagnosed hypertension with medical evidence that he had been diagnosed with alcoholic induced cardiomyopathy and heart failure. Thus, the examiner opined that it was less likely than not that the Veteran's diagnosed hypertension was proximately due to or the result of his other service-connected disabilities, to include diabetes mellitus, diabetic retinopathy with glaucoma, cataracts and corneal scarring, diabetic nephropathy, diabetic peripheral neuropathy of the bilateral lower extremities, and neuropathy of the internal saphenous nerve of the bilateral lower extremities. See January 2021 C&P examination. VA obtained an addendum medical opinion in February 2021. After performing a review of the evidence of record, the examiner opined that it was less likely than not that the Veteran's diagnosed hypertension was aggravated beyond its natural progression by his service-connected disabilities. In support of the opinion, the examiner noted that the Veteran had multiple conditions secondary to alcohol use that would contribute to his hypertension diagnosis, to include alcohol abuse that caused alcohol induced cardiomyopathy and heart failure. In addition, the examiner found that it was less likely than not, given his significant cardiovascular compromise due to alcohol abuse, that one could attribute the Veteran's now controlled blood pressure to his service-connected diabetes and related disabilities. In addition, the examiner noted that the Veteran's last documented blood pressure, obtained in October 2020 during a rheumatology visit, was 159/87, which did not show aggravation of his diagnosed hypertension. See March 2021 CAPRI. After a review of the evidence of record, the Board finds that service connection for hypertension is not warranted. In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, the post-service treatment records show that the Veteran was diagnosed with hypertension. See June 2016 Medical Treatment Record Non-Government Facility. Accordingly, the only question that remains is whether the Veteran's hypertension is related to service. As to whether the Veteran's diagnosed hypertension is related to service, the Board finds the January 2021 examination report, when considered in connection with the February 2021 VA addendum opinion, to be the most probative evidence of record. To this end, after reviewing the evidence of record, the VA examiner opined that it was less likely than not that the Veteran's diagnosed hypertension was caused or aggravated by his service-connected disabilities. The Board finds that the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided an adequate supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Importantly, there is no medical evidence to the contrary. In addition, the Board recognizes that the medical opinions of record do not address whether the Veteran's hypertension was caused by exposure to asbestos and other chemicals during his active duty service. However, the Board finds that there is no competent evidence showing that the Veteran's hypertension may be related to his claimed in-service exposure. As such, the Board finds that the Veteran's claim does not meet the low threshold requirements of McLendon, and therefore VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (explaining that something more than conclusory, generalized statements is needed to trigger the VA's duty to assist); Duenas v. Principi, 18 Vet. App. 512, 517 (2004). (Continued on the next page) The Board further recognizes the Veteran's assertion that his diagnosed gout is etiologically related to his active duty service. However, as a layperson without any demonstrated expertise concerning the etiology of his claimed disability, this general assertion may not be afforded more than minimal probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board concludes that any lay assertions by the Veteran in the present case are outweighed by the medical evidence of record, including the January 2021 and February 2021 VA medical opinions. As stated above, the examiner has training, knowledge, and expertise on which she relied to form her opinion and she provided a persuasive rationale. Importantly, as stated above, there is no competent medical evidence to the contrary. Based on the foregoing, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for hypertension. The claim is denied. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.