Citation Nr: 23015463 Decision Date: 03/15/23 Archive Date: 03/15/23 DOCKET NO. 19-07 195A DATE: March 15, 2023 ORDER Service connection for gout is granted. FINDING OF FACT During the pendency of the appeal the Veteran has suffered from a current gout disability that is related to his in-service gout condition. CONCLUSION OF LAW The criteria for service connection for gout have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2001 to November 2015 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a timely substantive appeal was not received in response to the February 2019 statement of the case (SOC). The Veteran did contact the RO in March 2019 regarding his claim, and in response the RO sent the Veteran a letter detailing options to proceed with his claim. However, the letter was misleading in that it did not include information about how to file a substantive appeal within the legacy appeals system. Despite no formal substantive appeal being received, the Veteran's claim was certified to the Board in February 2021. The Board therefore finds that VA has waived the requirement for a substantive appeal and the claim is properly before the Board. See Percy v. Shinseki, 23 Vet. App. 37, 46-47 (2009) ("If VA treats an appeal as if it is timely filed, a veteran is entitled to expect that VA means what it says."). Service connection for gout The Veteran contends that he suffers from a chronic gout condition that began during his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran's service treatment records (STRs) indicate that the Veteran was diagnosed with gout in March 2010. STRs note various prescriptions for gout including Allopurinol, Indomethacin, and Celebrex. A May 2010 record noted that the condition was aggravated following heavy running and a PT test and that the Veteran noted persistent pain and swelling in his right great toe at that time. An August 2014 record included gout among the Veteran's current conditions but clarified that he was currently asymptomatic. A May 2015 record noted a history of gout but that the Veteran had not had a problem with gout in four years. Accordingly, the question becomes whether the Veteran has a current gout disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) The Veteran underwent a VA examination in November 2015. The examiner noted that the Veteran had been diagnosed with gout in 2010; however, the examiner concluded that the Veteran's gout had resolved without residuals. The examiner explained that his conclusion was based on the fact that the record contained no evidence of any recurrent episodes of gout. The examiner noted that the Veteran's last episode of gout was over four years ago at that time. However, several years have now passed since the November 2015 examination and the Veteran's more recent post-service treatment records contain evidence indicating a current gout disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that "the law contemplates that entitlement to service-connected disability compensation benefits may arise after the receipt of a claim"); 38 U.S.C. § 5110(a) (stating that effective date of award "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application"); 38 C.F.R. § 3.400 (stating that, generally, effective date of award "will be the date of receipt of the claim or the date entitlement arose, whichever is later"). (Continued on the next page) A February 2016 treatment record noted right foot pain and the Veteran's report that he had a history of gout. The first diagnosis of gout in post-service treatment records is in a January 2019 record which noted the Veteran as a "Patient with known gout, now presenting with uncomplicated gout flare." The Veteran reported his gout pain at that time as 7/10. An August 2019 treatment record noted right great toe pain and swelling, "similar to past gout." An October 2019 treatment record noted pain/redness/swelling at right first MTP joint without trauma or injury and noted that it was "probably recurrent [g]out." In November 2019, the Veteran reported right foot pain that was assessed to be gout. A December 2019 record reported right first MPJ pain and noted that this was the fifth gout attack in 2019. Lastly, a February 2021 record noted "chronic gout" and that the Veteran takes Allopurinol for this condition. Updated treatment records have not been added to the file since February 2021. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether during the pendency of the appeal the Veteran has suffered from a current gout disability that is related to his in-service gout condition. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for gout is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Danette Mincey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.