Citation Nr: 21026578 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-18 711A DATE: May 3, 2021 REMANDED Entitlement to service connection for gout is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1991 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office (RO) denying service connection for gout. This issue was remanded to the Agency of Original Jurisdiction (AOJ) in July 2018 and again in September 2020 for additional development. Unfortunately, another remand is necessary in this case. In the September 2020 remand, the Board ordered that the RO obtain an addendum medical opinion on the Veteran's gout disability, with particular requests that the examiner (1) provide a direct service connection opinion, and (2) consider the Veteran's lay statements as to his incurrence. Although there was a September 2020 VA examination conducted seven days prior to the issuance of these orders, the record suggests that neither the Board nor the RO realized that this additional exam had occurred. However, the September 2020 medical opinion was based on an incorrect premise regarding the Veteran's diagnosis of gout, stating that he had been diagnosed with the disease in 2008, approximately four years after his actual 2004 diagnosis. Therefore, the September 2020 opinion would have been inadequate for the purposes of Board adjudication and it was appropriate for VA to nevertheless proceed with obtaining a new opinion. The January 2021 addendum opinion procured following the September 2020 Board remand opined that the Veteran's current gout disability was less likely than not related to service. However, this opinion is also inadequate. While the examiner did proffer a direct service connection opinion, the Veteran's statements were not addressed and appeared to have been dismissed due to having not been reflected in the Veteran's service treatment records. As such, this opinion both failed to follow the September 2020 remand directives and improperly dismissed the Veteran's lay testimony solely because they were not recorded in contemporaneous medical treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order); see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); see Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Therefore, the Board finds it necessary to obtain a new addendum opinion for reasoned consideration of the Veteran's lay testimony. The Board also acknowledges the Veteran's concerns regarding the January 2021 Supplemental Statement of the Case (SSOC), relayed in February 2021 correspondence. While the Veteran was correct in his finding that the January 2021 addendum opinion had been incorrectly attributed as an examination, only an addendum for gout had been requested in the September 2020 remand. As such, the January 2021 addendum was suitable for reliance in the RO's adjudication; it had simply been mislabeled. However, for the reasons detailed above, the opinion was nevertheless inadequate and shall be rectified upon remand. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a qualified clinician to determine whether the Veteran's current gout disability is related to the Veteran's military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, to include the FMLA documentation submitted in the Veteran's February 2021 correspondence, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gout disability began in or is otherwise caused by the Veteran's active service. **In doing so, the examiner must address the Veteran's lay evidence submitted by himself, his family members, his colleagues, and friends that he suffered from foot pain while in service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The Veteran's report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. All findings must be reported in detail and all opinions must be accompanied by a well-reasoned rationale. If any opinion cannot be resolved without resorting to speculation, the examiner must explain why this is so. 2. Then, readjudicate the claim on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.