Citation Nr: 1315796 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 04-03 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an evaluation higher than 40 percent for Reiter's syndrome. 2. Entitlement to service connection for hypertension, including due to service-connected Reiter's syndrome, and mood disorder. 3. Entitlement to service connection for indigestion, including due to Reiter's syndrome. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD), including due to Reiter's syndrome. 5. Entitlement to service connection for a stomach disorder, including due to Reiter's syndrome. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which continued the assigned 40 percent evaluation for Reiter's syndrome; and denied service connection for hypertension, indigestion, GERD (then characterized as "acid reflux"), stomach problems, and irritable bowel syndrome (IBS) all as secondary to Reiter's syndrome. Presently, the Board restates the issue of service connection for hypertension as to include as secondary to a service-connected mood disorder. This theory of entitlement will receive initial consideration upon remand of the expanded issue on appeal. The Veteran testified at a videoconference hearing in April 2006 before the undersigned Veterans Law Judge (VLJ) of the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. As noted, the Bryant decision was issued approximately 4 years after the April 2006 hearing in this matter. Although the undersigned did not engage in the specific colloquy required by Bryant, given the present granting of the claims and the Board's remand of the remaining claims, no prejudice will inure to the Veteran from issuance of the Board's present actions. In a March 2007 decision, the Board denied service connection for IBS, and remanded the remaining claims for additional development. Another hearing was then held before a local Decision Review Officer (DRO) in April 2008. During pendency of the appeal, the Veteran filed a timely Notice of Disagreement (NOD) with the RO's denial of service connection for a mood disorder secondary to Reiter's syndrome, and of a total disability rating based on individual unemployability due to service-connected disability (TDIU), however, both benefits were granted through an October 2008 rating decision. Presently, the issues of service connection for hypertension and an increased rating for Reiter's syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The competent evidence is at least evenly balanced on the issue of whether the Veteran's gastritis is etiologically related to medication taken for service-connected Reiter's syndrome. 2. The competent evidence is at least evenly balanced on the issue of whether the Veteran's GERD is etiologically related to Reiter's syndrome. 3. The symptom of indigestion is encompassed by the Veteran's GERD, and there is no other standalone compensable disability with this manifestation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for gastritis, as due to medication taken for service-connected Reiter's syndrome. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for GERD, as due to medication taken for service-connected Reiter's syndrome. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 3. The criteria are not met to establish service connection for indigestion, including due to service-connected Reiter's syndrome. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). The Court has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As indicated below, the Board is granting the benefits sought on appeal of entitlement to service connection for gastritis and GERD. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of these matters, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). With regard to remaining claim for service connection for indigestion, through the VCAA notice correspondence dated from January 2003 and April 2007, the RO (including through the Appeals Management Center (AMC)) notified the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). An addendum to the subsequent VCAA letter provided notice regarding the downstream disability rating and effective date elements of a pending claim for service connection. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the initial January 2003 VCAA notice correspondence was issued prior to the March 2003 RO rating decision adjudicating the claim under consideration, and therefore comported with the standard for timely notice. Meanwhile, the April 2007 notice correspondence was issued to the Veteran following the RO rating decision on appeal, and technically did not meet the definition for what constitutes timely notice. This notwithstanding, the Veteran had the opportunity to respond to the April 2007 VCAA correspondence before issuance of the most recent May 2011 Supplemental Statement of the Case (SSOC) continuing the denial of his claim. Moreover, there is no indication of any further available information or evidence to obtain to support the claim. Thus, the Veteran has had the full opportunity to participate in the adjudication of this claim. See again, Mayfield v. Nicholson, 19 Vet. App. at 128. The RO/AMC has also complied with the duty to assist the Veteran, obtaining service treatment records (STRs) and VA outpatient records. There is no indication of any outstanding private medical records to acquire. The Veteran has undergone VA Compensation and Pension examinations. 38 C.F.R. § 3.159(c)(4). The Board has also obtained an opinion from a medical expert within the Veterans Health Administration (VHA) as to the diagnosis and etiology of the claimed condition. 38 C.F.R. § 20.901. In furtherance of his claims, the Veteran has provided various personal statements. The Veteran testified at Board and DRO hearings. There is no indication of any further relevant evidence or information that has not already been obtained. The record is sufficient to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Conway v. Principi, 353 F.3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Analysis Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Lay evidence may be competent to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) ruled that competence to establish a diagnosis can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see Bostain v. West, 11 Vet. App. 124 (1998). However, lay testimony is competent if it relates to matters within direct observation and firsthand knowledge of the observer. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Veteran has been awarded service connection for Reiter's syndrome. This condition generally involves a symptom complex consisting of urethritis, conjunctivitis, and arthritis, which may represent an abnormal immune response to infection, with hereditary susceptibility. See Dorland's Illustrated Medical Dictionary (30th Ed.), at 1830 (2003)). The Veteran maintains that his various claimed gastrointestinal conditions arose secondarily to medications taken for his underlying Reiter's syndrome, namely non-steroidal anti-inflammatory drugs (NSAIDs) for the arthritis component of service-connected symptomatology. He contends that these conditions developed over a period of several years of usage of the medication. In September 2006, Dr. L.V.M., a VA physician who had treated the Veteran, indicated that the Veteran was attempting to establish a linkage between his stomach/bowel problems and Reiter's syndrome. In the past, the Veteran had had a normal colonoscopy. He had however shown gastritis on EGD which was most likely due to NSAIDs. The VA physician indicated agreement that the gastritis was most likely related to the treatment with NSAIDs for Reiter's disease, but given the normal colonoscopy from 2005 she could not say that his diarrhea and abdominal discomfort were related. The physician further indicated that it might be prudent for the Veteran to wait until after a colonoscopy scheduled for later that year to determine if there was evidence of inflammatory bowel disease/changes, and if so this would very likely be related to reactive arthritis/Reiter's syndrome. Records of VA outpatient treatment include an October 2007 nurse practitioner's general consult and impression in part of "esophageal reflux/gastritis, acute/hiatal hernia/h. pylori." The Veteran underwent a January 2008 VA Compensation and Pension examination for Reiter's syndrome. Among other symptoms, the Veteran reported that he had frequent diarrhea with loose bowel movements, with intolerance of multiple food types. The diagnostic impression was Reiter's syndrome. According to the VA examiner's opinion, the Veteran's gastrointestinal symptoms were unrelated to his Reiter's syndrome. A VHA designated physician provided a December 2012 medical opinion indicating that the Veteran's claims file had been reviewed in reference to symptoms of GERD, gastritis and hiatal hernia, and these diagnoses and symptoms were not related to Reiter's syndrome. The physician stated that there was no record of consistent medication use related to Reiter's syndrome that would cause or exacerbate the Veteran's gastrointestinal disorders. Under Jandreau, the Veteran is competent to report that he has gastrointestinal symptoms approximate to taking prescribed medications. Further, the evidence is relatively clear in favor of entitlement to service connection, given the September 2006 VA physician's statement that the gastritis shown on EGD was most likely due to NSAIDs taken for Reiter's syndrome. This opinion was provided by a treating physician with direct knowledge of medical history. The Board is aware that a December 2012 VHA designated physician's opinion held to the contrary that there was no record of consistent medication taken for Reiter's syndrome that would have caused or exacerbated gastrointestinal problems. However, the Board finds that the favorable and nonfavorable medical opinion sources are evenly balanced thus placing the evidence in a state of equipoise, to the extent that with application of VA's benefit-of-the-doubt doctrine all reasonable doubt must be resolved in the claimant's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Consequently, service connection for gastritis is deemed warranted. As to the claimed condition of GERD, there is likewise sufficient evidence to substantiate a favorable disposition. The September 2006 VA physician's opinion underscores a causal linkage between the Veteran's NSAID usage and gastrointestinal problems. Moreover, the opinion expressly states that any confirmed bowel problems would also very likely be related to medication taken for Reiter's syndrome. Resolving reasonable doubt in the Veteran's favor, even without expressly stating the requisite causal relationship between GERD and service-connected disability strongly supports such a conclusion. The remaining issue for consideration regarding gastrointestinal conditions consists of the claim for service connection for indigestion. However, the Veteran's report and assertion is effectively involving a sign or symptom of a larger syndrome, not as a standalone disability. The symptom of indigestion is encompassed by the grants of service connection for gastritis, as well as for GERD. There is no other disability involving indigestion for which service connection may be granted. Therefore, absent a clearly defined current disability, the claim for service connection for indigestion must be denied. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). Accordingly, the Board grants the claims for service connection for gastritis and GERD, and denies the claim of service connection for indigestion as a separate disorder. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for gastritis, as due to Reiter's syndrome, is granted. Service connection for GERD, as due to Reiter's syndrome, is granted. Service connection for an additional disability characterized by indigestion, including due to Reiter's syndrome, is denied. REMAND The Board finds further development warranted on the remaining claims. The Veteran argues that hypertension developed from stress associated with Reiter's syndrome. Service connection has been granted for a mood disorder, secondary to visual symptoms of Reiter's syndrome. The Board now requests a VA Compensation and Pension examination to resolve whether hypertension is due to the service-connected mood disorder. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). A VA examination regarding the severity of Reiter's syndrome was last conducted in January 2008, more than five years ago, and a more recent examination is now required. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, these claims are REMANDED for the following action: 1. Schedule the Veteran for a VA cardiovascular examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the requested VA examination. All indicated tests and studies must be performed, and all findings must be set forth in detail. The VA examiner must indicate whether the Veteran's hypertension is due to or the result of his service-connected mood disorder (itself secondary to Reiter's syndrome); or otherwise whether hypertension has been chronically aggravated beyond its natural disease progression by the mood disorder. The examiner must further indicate if there is any other means by which hypertension was caused and/or aggravated by the underlying service-connected Reiter's syndrome. The examiner must include in the examination report the explanation for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she must so state, and further explain why it is not feasible to provide a medical opinion. 2. Schedule the Veteran for a VA examination, preferably with a rheumatologist or a physician similarly qualified to respond to the inquiry below, to determine the current severity of his service-connected Reiter's syndrome. The claims folder must be provided to and reviewed by the examiner in conjunction with the requested VA examination. All indicated tests and studies must be performed, and all findings must be set forth in detail. The VA examiner must indicate all present symptoms and manifestations attributable to the Veteran's service-connected Reiter's syndrome, in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5002 for rheumatoid arthritis, including, as appropriate, under the criteria for when there is an active process. With regard to evaluating chronic residuals of the underlying condition, the VA examiner must identify all affected joint regions. The examiner must then report complete range of motion findings for the affected joint(s). The examiner must be asked to indicate whether pain or weakness significantly limits functional ability during flare-ups or when the measured area(s) is/are used repeatedly over a period of time. The examiner must also be asked to determine whether the affected joint region(s) exhibits weakened movement, excess fatigability or incoordination. These determinations must be expressed in terms of additional range of motion lost due to any weakened movement, excess fatigability or incoordination. 3. The RO/AMC must then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the RO/AMC must readjudicate these claims on appeal based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative must be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs