Citation Nr: 25007828 Decision Date: 06/11/25 Archive Date: 06/11/25 DOCKET NO. 09-21 669 DATE: June 11, 2025 REMANDED Entitlement to an increased rating for gout, identified as gout, metatarsophalangeal joints of both feet and rated as 20 percent disabling prior to November 21, 2007 and as 40 percent disabling from November 21, 2007 to October 7, 2017; then, from October 7, 2017, identified as multiple joint disabilities and rated as gout left shoulder (20 percent), gout right shoulder (20 percent), gout left knee limitation of flexion (10 percent), gout left knee limitation of extension (noncompensable), gout right knee limitation of extension (10 percent), gout right ankle (10 percent), gout left knee (10 percent), gout left foot (10 percent), and gout right foot (10 percent) is remanded. Entitlement to service connection for a cervical spine disability, secondary to gout, it remanded. Entitlement to service connection for right and left hip disabilities, secondary to gout, is remanded. Entitlement to service connection for right and left wrist disabilities, secondary to gout, is remanded. Entitlement to an increased rating for hypertension, currently rated as 10 percent under Diagnostic Code (DC) 7101 prior to January 8, 2010, and thereafter included in a 30 percent rating for kidney cysts with hypertension under DC 7533, is remanded. Entitlement to service connection for a headache disability, including as secondary to hypertension, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND This matter is before the Board of Veterans' Appeals (Board) on appeal of June 2008, April 2012, and July 2018 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2011, the Veteran provided testimony as to his claims for an increased rating for hypertension, an increased rating for gout, and service connection for glaucoma. This testimony was provided before a Veteran's Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the claims file. In August 2011, the Board remanded these claims for additional development. In July 2019, the Veteran testified at a hearing held before the undersigned. Unfortunately, a transcript of this hearing is not available. An October 2022 letter notified the Veteran that the transcript was unavailable. The Veteran was offered the opportunity to request an additional Board hearing. He did not request an additional hearing. In a September 2023 decision, the Board granted entitlement to service connection for glaucoma and remanded the remaining claims for additional development. Thereafter, a November 2024 rating decision granted entitlement to service connection for obstructive sleep apnea (OSA) and for degenerative arthritis of the lumbar spine. The claims seeking service connection for glaucoma, OSA, and a lumbar spine disability have been granted in full. They are no longer in appellate status. 1. Entitlement to an increased rating for gout, identified as gout, metatarsophalangeal joints of both feet and rated as 20 percent disabling prior to November 21, 2007 and as 40 percent disabling from November 21, 2007 to October 7, 2017;then, from October 7, 2017, identified as multiple joint disabilities and rated as gout left shoulder (20 percent), gout right shoulder (20 percent), gout left knee limitation of flexion (10 percent), gout left knee limitation of extension (noncompensable), gout right knee limitation of extension (10 percent), gout right ankle (10 percent), gout left knee (10 percent), gout left foot (10 percent), and gout right foot (10 percent) is remanded. When VA undertakes to provide a veteran with a VA medical examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA medical examination or opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Recently in Ingram v. Collins, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327 (Mar. 12, 2025), the Court held that, pursuant to VA regulations and Jones v. Shinseki, 26 Vet. App. 56 (2012), the ameliorative effects of medication must be discounted in evaluating musculoskeletal disabilities. In other words, the ameliorative effects of medication and the level of functional impairment that would be present absent such medication should be discussed. Over the appeal period, VA medical records and VA examinations show the Veteran used medication for gout. However, the VA examinations of record, including September 2024 VA foot, ankle, knee, and shoulder examinations, did not discussed the ameliorative effects of any medication. Thus, the evidence is currently inadequate to evaluate the claim under the requirements of Ingram. Additional examinations must be obtained. 2. Entitlement to service connection for a cervical spine disability, secondary to gout, it remanded. 3. Entitlement to service connection for right and left hip disabilities, secondary to gout, is remanded. 4. Entitlement to service connection for right and left wrist disabilities, secondary to gout, is remanded. In Bailey v. Wilkie, 33 Vet. App. 188 (2021), the United States Court of Appeals for Veterans Claims (Court) held VA must address potential secondary service connection issues in the context of rating appeals when such issues are reasonably raised by the record even when the claimant has not filed a formal service connection claim. Here, a March 2009 VA rheumatology consult note describes gout flare ups with bilateral hip pain and neck pain. June 2012 and May 2016 VA treatment notes indicate the Veteran's gout flare ups involve his wrists. A May 2019 VA orthopedic surgery consult indicates the Veteran has gout in his hip. Additional May 2019 VA records include bilateral hip x-rays which documented lucent defects "compatible with [the Veteran's] chronic gout. Accordingly, the issues of entitlement to service connection for a cervical spine disability, bilateral hip disabilities, and bilateral wrist disabilities, all secondary to gout, are raised by the record. Under VA's duty to assist, examinations and etiology opinions addressing the claims must be obtained. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). The Board additionally notes, December 2022 and August 2024 VA memoranda concede the Veteran's in-service participation in a toxic risk exposure activity (TERA). The claims must also be remanded for additional development based on the Veteran's presumed toxic exposure as indicated in these VA memoranda. See also 38 U.S.C. § 1168. 5. Entitlement to an increased rating for hypertension, currently rated as 10 percent under Diagnostic Code (DC) 7101 prior to January 8, 2010, and thereafter included in a 30 percent rating for kidney cysts with hypertension under DC 7533, is remanded. The Veteran seeks an increased rating for his hypertension disability. Over a portion of the appeal period, the hypertension disability is rated in conjunction with a kidney cysts disability under Diagnostic Code (DC) 7533. In September 2023, the Board remanded the claim to obtain new VA examinations because it appeared the Veteran' hypertension may have worsened since the most recent VA examination had been provided. See Snuffer v. Gober, 10 Vet. App. 400 (1997). In remanding the claim, the Board also directed the Agency of Original Jurisdiction (AOJ) to contact the Veteran to request that he identify outstanding private treatment records relevant to his claim and provide authorization for VA to request these records. In January 2024, the AOJ contacted the Veteran requesting information and medical release forms as to any outstanding relevant private treatment records. The Veteran did not respond to this communication. In November 2024, a VA hypertension examination was provided. In January 2025, VA hypertension and kidney conditions examinations were provided. The Board notes, under the kidney disability rating criteria, an increased rating may be available based on laboratory test results. See 38 C.F.R. §§ 4.115a. In evaluating the kidney condition, the examiner noted the Veteran received treatment from a non-VA urologist, but records of this treatment were not included in the claims file. In the Remarks portion of the examination, she observed the Veteran's diagnosis of renal cortical cysts with hypertension was unchanged "due to lack of updated [u]rology notes since 2017." She indicated VA laboratory tests from July 2023 included abnormal results. She recommended the Veteran follow up with his VA primary care provider and seek assistance in obtaining outstanding private urology records. In the Diagnostic Testing portion of the examination report, the examiner noted some VA test results were included in the claims file, but no additional laboratory tests were conducted with the examination. The examiner directed the Veteran to seek assistance to obtain outstanding records. This indicates the outstanding records (including test results) are important to his treatment and important to evaluating the severity of his disability. The examiner did not provide any explanation for not obtaining additional test results if the private testing results were unavailable. Absent additional information explaining why new testing was not obtained, the January 2025 VA kidney conditions examination is inadequate. As noted above, the Veteran did not respond to the AOJ's attempt to assist him in obtaining outstanding private treatment records. As the claim is remanded to provide additional assistance to the Veteran, he is reminded that he must cooperate with VA in developing evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). 6. Entitlement to service connection for a headache disability, including as secondary to hypertension is remanded. VA hypertension examinations of October 2017 and September 2024 noted the Veteran's reports headaches associated with his hypertension. The Veteran is competent to report his headaches, and he is competent to report their occurrence with increased blood pressure. Service connection is not established for a headache disability. Thus, the issue of entitlement to service connection for a headache disability, including as secondary to hypertension, is raised by the record. Bailey, supra. The Veteran's competent reports of symptoms capable of lay observation are sufficient to trigger VA's duty to provide an examination. The claim must be remanded to obtain a VA headache examination and etiology opinion. See McLendon, supra. The claim must also be remanded for additional development based on the Veteran's conceded toxic exposure as indicated in the December 2022 and August 2024 VA memoranda. 38 U.S.C. § 1168. 7. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. In September 2023, the Board found the issue of entitlement to a TDIU was raised by the evidence of record under the holding in Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). The TDIU claim is inextricably intertwined with the remanded claims discussed above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (Where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined.) In November 2024, the AOJ provided the Veteran with a TDIU claim form (VA Form 21-8940). The Veteran did not return the form. As the claim is remanded pending the adjudication of the intertwined issues, the Veteran should be provided an additional opportunity to complete and submit a TDIU claim form which includes information as to his employment history and education. The Veteran is again advised the duty to assist is not a one-way street and failure to cooperate with the necessary development efforts to facilitate an informed decision as to TDIU may result in a denial of TDIU benefits. See Wood, supra. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment provider, including a private urologist or urologists, who may have records relevant to his claims which are not yet associated with the claims file. Make two requests for the authorized records from any treatment provider identified, unless it is clear after the first request that a second request would be futile. 2. After attempting to assist the Veteran with obtaining outstanding private treatment records, an examination or examinations with an appropriate clinician(s) to determine the current severity of his service-connected hypertension (including renal cortical cysts with hypertension) disability. The examiner should review the entire claims file and provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under all applicable rating criteria. The examiner should provide all tests appropriate for rating the hypertension disability, including under the rating criteria for renal cortical cysts with hypertension. 3. Schedule the Veteran for a VA examination for a headache disability. The examination must provide the evaluations required under the PACT Act based on the Veteran's participation in a TERA. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is a headache disability at least as likely as not related to service, including participation in a TERA? Is a headache disability at least as likely as not proximately due to the service connected hypertension disability? Is a headache disability at least as likely as not aggravated by the service connected hypertension disability? The secondary service connection opinion provided must explicitly address both causation and aggravation to be deemed adequate, acknowledging these are separate inquires that require different rationales. In this context, the examiner must be advised aggravation means any increase in disability, i.e., additional functional impairment in earning capacity, resulting from the secondarily claimed condition due to the primary disability. There is no requirement that such increase be permanent in nature. An opinion that simply states there is no anatomical or biological connection between the conditions without addressing whether there is additional functional impairment in earning capacity will be deemed insufficient to facilitate an informed decision on the Veteran's claim. The examiner must be advised 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. Any opinion provided must be supported by a complete rationale. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected gout disability, including identifying the joints affected by gout. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating all manifestations of gout under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should state what the severity of the gout disability (including as manifested in any joint) might be absent the ameliorative effects of any medication used to treat gout or the specific joint. If this is not feasible, the examiner MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. The examiner must provide a complete rationale for his or her opinions. If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but must explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 5. Schedule the Veteran for a VA examinations for cervical spine, bilateral hip, and bilateral wrist disabilities. The examination must provide the evaluations required under the PACT Act based on the Veteran's participation in a TERA. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is any cervical spine, bilateral hip, and/or bilateral wrist disability at least as likely as not related to service, including participation in a TERA? Is any cervical spine, bilateral hip, or bilateral wrist disability at least as likely as not proximately due to a service connected gout disability? Is any cervical spine, bilateral hip, or bilateral wrist disability at least as likely as not aggravated by a service connected gout disability? The opinion provided must explicitly address both causation and aggravation to be deemed adequate, acknowledging these are separate inquires that require different rationales. In this context, the examiner must be advised aggravation means any increase in disability, i.e., additional functional impairment in earning capacity, resulting from the secondarily claimed condition due to the primary disability. There is no requirement that such increase be permanent in nature. An opinion that simply states there is no anatomical or biological connection between the conditions without addressing whether there is additional functional impairment in earning capacity will be deemed insufficient to facilitate an informed decision on the Veteran's claim. The examiner must be advised 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. (Continued on the next page) ? Any opinion provided must be supported by a complete rationale. 6. Develop and adjudicate the issue of entitlement to a TDIU, including by providing the Veteran with an additional opportunity to complete and submit a TDIU claim form. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.