Citation Nr: 22012163 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-08 152 DATE: March 2, 2022 REMANDED Service connection for gout of the right foot, to include as secondary to service-connected disabilities is remanded. Service connection for gout of the left foot, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to January 2000. In November 2018, this appeal was remanded by the Board of Veterans Appeals (Board) for further development. Then, in an August 2020 decision, the Board denied the claims for service connection for right foot and left foot gout, to include as secondary to service-connected disabilities. The Veteran then appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and, in June 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR) which vacated that portion of the Board decision as to such claims and remanded the matter back to the Board for development pursuant to the JMPR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). In accordance with the JMPR, the Board finds that a remand is necessary prior to readjudication of these claims. In the JMPR, the Court found that the Board erred by failing to ensure substantial compliance with the November 2018 Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the November 2018 Board remand, an addendum opinion to determine the etiology of the Veteran's right foot and left foot gout was obtained in April 2019. The November 2018 remand directives specifically instructed the examiner to "consider and discuss the Veteran's lay testimony and assertions regarding any pertinent complaints and symptoms." However, the April 2019 examiner failed to discuss the Veteran's statements in his opinion. As such, the Court found the April 2019 VA opinion to be inadequate. A remand is necessary to obtain a new VA examination. Additionally, the Board notes that the Veteran asserts, inter alia, that his right foot and left foot gout is secondary to his arthritis. Currently, service connection is in effect for arthritis of the right knee and for lumbar spine (right knee retropatellar pain syndrome and degenerative joint disease with chronic strain of the lumbar spine). However, there are no opinions of record addressing right foot and left foot gout as secondary to the Veteran's service-connected lumbar spine arthritis. Therefore, on remand, such opinions should also be obtained. Accordingly, the matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature, extent, and etiology of his right foot and left foot gout. The Veteran's claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed, and the results should be reported in detail. After review of the claims file and examination of the Veteran, the examiner is asked to opine as to whether: a. Is it at least as likely as not (50 percent probability or greater) that the diagnosed gout of the Veteran's right foot onset in, or is otherwise etiologically related to his service? Why or why not? b. Is it at least as likely as not (50 percent probability or greater) that the diagnosed gout of the Veteran's right foot is proximately due to, or the result of, his service-connected disabilities, to include his right knee arthritis and lumbar spine arthritis? Why or why not? c. Is it at least as likely as not (50 percent probability or greater) that the diagnosed gout of the Veteran's right foot has been aggravated (made worse) beyond its natural progression by his service-connected disabilities, to include his right knee arthritis and lumbar spine arthritis? Why or why not? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. d. Is it at least as likely as not (50 percent probability or greater) that the diagnosed gout of the Veteran's left foot onset in, or is otherwise etiologically related to his service? Why or why not? e. Is it at least as likely as not (50 percent probability or greater) that the diagnosed gout of the Veteran's left foot is proximately due to, or the result of, his service-connected disabilities, to include his right knee arthritis and lumbar spine arthritis? Why or why not? f. Is it at least as likely as not (50 percent probability or greater) that the diagnosed gout of the Veteran's left foot has been aggravated (made worse) beyond its natural progression by his service-connected disabilities, to include his right knee arthritis and lumbar spine arthritis? Why or why not? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. The examiner is advised that the Veteran is competent to report the history of his symptoms and that such reports MUST be considered and addressed in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and (CONTINUED ON NEXT PAGE) argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.