Citation Nr: 1320952 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-17 264A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for Reiter's syndrome, also claimed as reactive arthritis and arthritis of the hips, knees, and lumbar spine, to include as secondary to service-connected genitourinary problems, to include testicle pain, recurrent prostatitis, and urinary tract infections with infertility. 2. Entitlement to a separate rating for an acquired psychiatric disorder, to include mood disorder and major depressive disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In April 2010, the Veteran testified before a Decision Review Officer at a hearing held at the local RO. A transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims, which will also be considered in adjudicating this appeal. With respect to the Veteran's claim of entitlement to a separate rating for depression, the Board has re-characterized the issue as entitlement to a separate rating for an acquired psychiatric disorder, as the record contains various diagnoses of acquired psychiatric disorders, including a mood disorder and major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As discussed below, the claims on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required on his part. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Reiter's Syndrome/Reactive Arthritis The Veteran is seeking service connection for Reiter's syndrome and/or reactive arthritis and arthritis affecting the hips, knees, and spine secondary to his service-connected genitourinary symptoms. He has essentially asserted that his service-connected genitourinary disabilities are manifested by recurrent urinary tract infections and chronic prostatitis, which have caused or aggravated either the Reiter's syndrome and/or arthritis. In November 2010, the Board remanded this claim in order to obtain a VA opinion that addressed whether the Veteran's Reiter's syndrome or arthritis of the spine, knees, and hips are caused or aggravated by his service-connected genitourinary disabilities. The Veteran was afforded a VA examination in February 2011 where he was diagnosed with Reiter's syndrome affecting multiple joints, including the hips, knees, and lumbar spine. In February 2012, the February 2011 VA examiner provided an addendum report wherein he opined that the Veteran's Reiter's syndrome/reactive arthritis is less likely as not incurred in or caused by service. While the VA examiner provided a rationale in support of his opinion, he did not address or consider whether the current Rieter's syndrome/reactive arthritis is aggravated by his service-connected genitourinary disabilities. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, in light of the deficiencies detailed above, the Board finds a remand is necessary in order to obtain an addendum report from the February 2010 VA examiner that addresses whether the Veteran's current Reiter's syndrome/reactive arthritis is aggravated by his service-connected genitourinary disabilities. The Board also notes that the Veteran receives treatment for his claimed disorders through VA facilities in the Miami, Florida, Health Care System, including its inclusive outpatient clinics. Therefore, on remand, all outstanding VA treatment records dated from March 2012 to the present, should be obtained for consideration in the Veteran's appeal. Separate Rating for Acquired Psychiatric Disorder Review of the record reveals that service connection has been established for hypothyroidism with depression, rated as 60 percent disabling under Diagnostic Code 7903, which contemplates "mental disturbance" as a manifestation of the thyroid disability. The Veteran is seeking a separate rating for depression. He has asserted that his depression was diagnosed during service, along with Graves's disease, but his depression is a separate condition and warrants a separate rating. See October 2006 Veteran statement. In the alternative, he has asserted that his depression existed prior to service and was worsened therein. See June 2007 Veteran statement. The evidentiary record contains evidence which suggests that the Veteran's hypothyroidism does not involve depression. In this regard, physicians have noted the Veteran had childhood and adolescent depression. See VA examination reports dated July 2003 and March 2006. While physicians have noted that depression existed prior to service, the Board notes that these notations were based upon the Veteran's report. See 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995) (mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition). The Board also notes that a psychiatric condition was not noted at entry to service and the evidentiary record does not contain clear and unmistakable evidence that a psychiatric condition existed prior to service. Nevertheless, the physician who conducted the March 2006 VA examiner opined that it is as likely as not that the Veteran's major depressive disorder was incurred as a result of service, noting there was further development of depression during service. In this regard, the Veteran reported experiencing anxiety and depression, which was treated in 1980 during service. See March 2006 VA examination report. In November 2010, the Board remanded this claim in order to obtain an additional VA opinion. The VA examiner rendered a diagnosis mood disorder with major depressive-like features in association with general medical conditions. The examiner determined there was no evidence suggesting a psychiatric condition prior to service but he noted the Veteran was treated for depression twice in service. The examiner then stated that "the increase and persistence of the depressive disorder is as likely as not due to the natural progress of the disease in association with the development of other medical conditions and an increase in the Veteran's debility." While the evidentiary record contains medical opinions that purport to address the likely etiology of the Veteran's current psychiatric condition, the Board finds that an additional medical opinion is needed in order to render a fully informed decision. Indeed, there is evidence of record which suggests that the Veteran's depression was incurred during service and increased therein, while there is also evidence which suggests that the Veteran's depression was incurred in conjunction with other medical conditions. As such, there remains a question as to whether (1) the Veteran's current psychiatric condition is a component of, or secondary to, his service-connected hypothyroidism disability or (2) is a separate and distinct condition for which a separate rating is warranted. Therefore, on remand, an additional medical opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records from the Northern Indiana Health Care System and its inclusive outpatient clinics dated from March 2012 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request that the February 2010 VA examiner review the claims file, including this remand, and provide an addendum to his previous report that addresses the following: Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current Reiter's syndrome/reactive arthritis is aggravated by his service-connected genitourinary problems (including testicle pain, recurrent prostatitis, and urinary tract infections? The examiner is asked to consider whether the service-connected genitourinary problems, to include any manifestation thereof and the functional impairment caused thereby, aggravates the Veteran's current Reiter's syndrome/reactive arthritis. In answering the foregoing, the examiner should note that aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints. A rationale must be provided for each opinion provided. If the foregoing cannot be answered on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report and explain why this is so. 3. Request that the February 2011 VA examiner review the claims file, including this remand, and provide an addendum to his previous report that addresses the following: (a) Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current mood disorder with major depression-like symptoms is associated with service-connected hypothyroidism? In other words, is it likely that the current mood disorder was caused by service-connected hypothyroidism? Or, is it likely that the current mood disorder was aggravated by service-connected hypothyroidism? In this regard, the examiner should note that aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints. (b) Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current mood disorder with major depression-like symptoms was incurred during active service or is otherwise related thereto? (c) A rationale must be provided for each opinion offered. If the foregoing cannot be answered on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report and explain why this is so. Please do not restate your conclusion as the basis for your findings. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).