Citation Nr: 22019294 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 16-20 837 DATE: March 31, 2022 REMANDED Entitlement to service connection for gout is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a rating in excess of 50 percent for PTSD during the period prior to February 10, 2020 and in excess of 70 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2009 to May 2009, January 2010 to January 2011, May 2013 to December 2013, and from January 2014 to February 2015. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a July 2019 hearing. The transcript of the hearing is of record. A July 2019 Board decision remanded the issues on appeal and a January 2021 Board decision then granted service connection for dermatitis and denied service connection for gout and an increased rating for PTSD. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (JMPR) in November 2021, asking that the January 2021 Board decision be vacated only as it pertained to the issues of service connection for gout and an increased rating for PTSD. In November 2021, the Court granted the JMPR and remanded the issues on appeal, as well as the unadjudicated issue of entitlement to TDIU, for readjudication in accordance with instructions set out in the JMPR. 1. Entitlement to service connection for gout The January 2021 JMPR asked that the issue of service connection for gout be remanded to obtain a new VA opinion regarding whether the Veteran's gout clearly and unmistakably preexisted service, noting that neither the August 2015 nor the October 2015 examiner specifically addressed this question. The issue is therefore remanded to obtain the required clarification regarding the onset of the Veteran's disability and whether it clearly and unmistakably preexisted service. The Board also notes that there appear to be outstanding private treatment records regarding gout. December 2009 service treatment records noted that the Veteran had been diagnosed with gout on the right foot at Jordan ER but did not note the date that ER visit. The record contains multiple requests, most recently in December 2019 and March 2020, for the Veteran to complete the required authorization for the outstanding private records. The record is silent for any indication that the Veteran responded to the request or for any sign of nonreceipt. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991). While VA does have a duty to assist the Veteran in the development of the claim, that duty is not limitless, and the Veteran must be prepared to cooperate with VA's efforts to obtain all relevant evidence. Olson v. Principi, 3 Vet. App. 480, 483 (1992). However, as the issue is already being remanded, the Board finds that an additional attempt to obtain the records should be made, particularly as the information is relevant to the question of onset of gout. 2. Entitlement to TDIU The January 2021 JMPR found that the issue of entitlement to TDIU was raised by the record, noting October 2016 VA treatment records stating that PTSD affected the Veteran's ability to work and go to school. The Board's review indicates that the record does not contain a VA Form 8940 or other information regarding the Veteran's employment history, though the February 2020 VA examination noted that the Veteran was employed full time as a sales account manager. Remand is therefore required to obtain the information regarding the Veteran's educational and employment history needed to properly adjudicate entitlement to TDIU. 3. Entitlement to a rating in excess of 50 percent for PTSD during the period prior to February 10, 2020 and in excess of 70 percent thereafter The January 2021 JMPR remanded the issue of an increased rating for PTSD to address relevant evidence of record, specifically asking that the Board consider evidence related to the impact of the Veteran's PTSD on his ability to engage in employment duties and obtain and retain employment. Information regarding the Veteran's employment history, including a VA Form 8940, has been requested above as part of the required development for the issue of entitlement to TDIU. As that development is likely to produce information relevant to the Veteran's ability to obtain and maintain employment and the JMPR specifically asked that such evidence be considered by the Board in rating PTSD, this issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). The matters are REMANDED for the following action: 1. Contact the Veteran to provide him with VA Form 21-8940 and ask that it be completed. 2. Ask the Veteran to complete a VA Form 21-4142 for the 2009 Jordan Emergency Room visit and any other private providers who provided treatment for gout. Make two requests for the authorized records from all identified providers unless it is clear after the first request that a second request would be futile. 3. After the development in (2), obtain a new VA opinion regarding the etiology of the Veteran's gout. The examiner should review the file and provide a complete rationale for all opinions expressed. In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The following opinions are requested: a) Did the Veteran's gout clearly and unmistakably (undebatable) preexist service? The opinion should consider and discuss the October 2015 statement that the first flare-up of gout was during basic training. b) If gout is found to have clearly and unmistakably preexisted service, please indicate whether it was clear and unmistakable that it was not aggravated beyond its natural progression by service. The opinion should address the Veteran's exacerbations in service. c) If gout did not clearly and unmistakably pre-exist service, please address whether it is at least as likely as not (50 percent or greater probability) that it is related to the Veteran's active service. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.