Citation Nr: 1322124 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 05-27 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for Reiter's syndrome, claimed as due to a contaminated injection. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The appellant was in the Army National Guard from January to October 1963; the California Army National Guard from October 1963 to March 1969; the U.S. Army Reserves from March to October 1969; and the New Mexico Army National Guard from January 1979 to March 1983. He had verified active duty for training (ACDUTRA) in the California Army National Guard from February 8, 1963, to August 7, 1963, as well as from August 8, 1964, to August 22, 1964; August 17, 1965 to August 28, 1965; from August 10, 1966, to August 27, 1966; from July 8, 1967, to July 22, 1967; and from July 6, 1968, to July 20, 1968. Other periods of ACDUTRA were from July 14, 1979, to July 28, 1979; from July 12, 1980, to July 26, 1980; and from August 7, 1982, to August 21, 1982. His service records also indicate that he was ordered to temporary state active duty from August 14 to August 16, 1965, for Watts, Los Angeles, California, Riot Control, and from February 2 to February 13, 1980, at Santa Fe, New Mexico, to quell a prison riot. The appellant also served in the Air National Guard of New Mexico from March 1983 to March 1984, but he does not claim, as indicated in an August 2006 Decision Review Officer's Conference Report, that Reiter's syndrome is based on that specified period of service. This matter comes before the Board of Veterans' Appeals (Board) from an April 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In August 2007, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In February 2008, January 2011, and August 2012, the Board remanded this matter for further development, which has been completed and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDING OF FACT The appellant does not currently have Reiter's syndrome. CONCLUSION OF LAW Reiter's syndrome was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 106, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.309 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Concerns As noted above, the Board remanded this matter on several occasions. In February 2008, the Board, in pertinent part, instructed the Appeals Management Center (AMC)/RO to obtain outstanding treatment records, provide the appellant an examination for his claimed Reiter's syndrome, and to readjudicate the claim. Additional records were obtained, the appellant was provided an examination in July 2009, and his claim was readjudicated in an April 2010 supplemental statement of the case (SSOC). In January 2011, the Board instructed the RO/AMC to ascertain all periods of INACDUTRA; obtain additional private medical records with the appellant's assistance; provide the appellant another examination to determine the existence of a current disability, probable date of onset, and nexus to service; and readjudicate the claim. Subsequently, the AMC/RO obtained information regarding the appellant's INACDUTRA service, associated additional treatment records with the claims folder, provided the appellant another examination in February 2011 and obtained an addendum report in March 2011, and readjudicated his claim in a June 2012 SSOC. Most recently, in August 2012, the Board determined that the February 2011 and March 2011 examination reports were inadequate as they did not address the appellant's contention that his Reiter's syndrome was the result of a contaminated injection. Accordingly, the Board remanded the matter once again for another examination, and readjudication of the claim. Thereafter, the appellant was afforded additional examinations in September 2012 and April 2013 in accordance with the Board's remand directives, and his claim was readjudicated in a May 2013 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in June 2003, prior to the April 2004 rating decision, and in August 2005 and April 2008, the RO satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the appellant of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the appellant was expected to provide. A March 2006 letter also notified the appellant of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in various SSOCs, most recently in May 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such re adjudication in the statement of the case). VA has done everything reasonably possible to assist the appellant with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available service and post-service treatment records have been secured. While the appellant identified multiple treatment providers, VA attempted to obtain all identified records. However, many of those records were deemed unobtainable. For example, in a March 2010 memorandum, the RO made a formal finding on the unavailability of clinical records for 1996, and indicated that these records were unavailable and all efforts to obtain the information had been exhausted and further attempts would be futile. Therefore, the Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining those records. Also, the appellant was provided VA examinations for his claim. Although in the August 202 remand the Board determined that the February 2012 and March 2011 VA examination reports were inadequate in that the examiner did not address the appellant's contention that his Reiter's syndrome was the result of a contaminated injection. Pursuant to the Board's remand, the appellant was provided additional examinations in September 2012 and April 2013. Cumulatively these examination reports reflect that the examiner reviewed the appellant's past medical history, recorded his current complaints, conducted appropriate evaluations of the appellant, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The appellant has not contended otherwise. Additionally, the appellant presented testimony in support of his claim before the undersigned. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the August 2007 hearing, the undersigned complied with the requirements set forth in Bryant. Additionally, the appellant was offered an opportunity to ask the undersigned questions regarding his claim, and the appellant has not asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) (2012), nor has he identified any prejudice in the conducting of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. Thus, the duties to notify and assist have been met. Analysis The appellant essentially contends that he has Reiter's syndrome related to service. He specifically asserts that his disability is due to a contaminated injection during service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). The issue in this case is whether the appellant currently has a diagnosis of Reiter's syndrome. Treatment records and examination reports throughout the claims folder reflected diagnoses of Reiter's syndrome with an onset date of 1991. The appellant was afforded multiple VA examinations related to his Reiter's syndrome. A July 2009 VA eye examination report showed that the appellant did have any ocular manifestations of Reiters syndrome. The examiner indicated that Reiter's syndrome was an auto-immune disorder and was not related to the purported contamination injection while in the service. A February 2011 VA examination report reflected that there were no clinical findings or service connected events to document Reiter's syndrome. In a March 2011VA addendum examination report, the examiner indicated that there was no data in the record or in the medical literature to support the proposition that an injection caused Reiters syndrome. A January 2012 VA eye examination report showed that the appellant had a history of Reiter's syndrome but the examiner was unable to find any eye examination report confirming any secondary ocular involvement. The examiner noted that Reiter's syndrome was an auto-immune disorder and was not related to the purported contamination by injection while in the service On VA examination in September 2012, the examiner noted a diagnosis of Reiter's syndrome and found that it was less likely than not incurred in or caused by service. The examiner reasoned that the appellant had been examined in March 2012 by a VA rheumatologist, who did not think that the appellant had rheumatoid arthritis or reactive arthritis (Reiter's syndrome). VA afforded the appellant another examination in April 2013 for which the examiner conducted a thorough review of the claims folder and evaluation of the appellant. In citing the relevant medical history, the examiner noted that the appellant had a long history of widespread joint pain dating back to 1982 and had been given multiple diagnoses to account for his symptoms. She indicated that in 1991, the appellant was given a diagnosis of "possible Reiters' syndrome" based on his joint pain, recurrent conjunctivitis, and recurrent dysuria; and he was treated with steroids. Additionally, a 1991 examination for Social Security Administration (SSA) benefits showed that there was only evidence of degenerative arthritis and no evidence of inflammatory arthritis, to include Reiter's syndrome. The examiner also noted that in 1995, the appellant was treated for Reiter's syndrome but this treatment was based on previous history documented in the medical records. The records throughout the years were consistently negative for any form of inflammatory arthritis. In 1997, another SSA evaluation report noted a diagnosis of possible Reiter's syndrome despite the medical reviewers finding that there was no physical evidence of significant joint pathology. The appellant continued to be intermittently treated for seronegative rheumatoid arthritis with methotrexate up until approximately 2005. In 2012, he was thoroughly evaluated by VA rheumatology service who determined that he did not have evidence of inflammatory arthritis (i.e. no evidence of rheumatoid arthritis or Reiter's syndrome) but diagnosed him with degenerative joint disease of multiple joints and suggested treatment with NSAIDs and salsalate. Reiterating that the first evidence of a diagnosis of Reiter's syndrome in the medical records was in 1991 at which time notations of possible and probable Reiter's syndrome were noted, the examiner indicated that there was no evidence of any current Reiter's syndrome. Although he complained of multiple joint pains for many years and Reiter's' syndrome was a working diagnosis beginning in 1991, his subsequent presentation has not supported this diagnosis. The examiner found that the appellant no longer carried a diagnosis of Reiter's syndrome. She explained that Reiter's syndrome, also known as reactive arthritis, is defined as arthritis that arises after an infection, the most common being chlamydia and of the enteric pathogens. The incubation period from infection and symptoms of arthritis was days to a few weeks at the most. The examiner added that patients with Reiter's syndrome often presented with conjunctivitis and urethritis and for most patients the arthritis symptoms lasted from six months to one year. Additionally, it was rare to see patients with chronic Reiter's syndrome and when this occurred the patients were generally HLA-B27 positive and the appellant was HLA-B27 negative. She further acknowledged that the appellant had been treated for conjunctivitis symptoms intermittently over the years, his recent eye examination was negative for any conditions associated with Reiter's syndrome and the medical records supported a diagnosis of allergic conjunctivitis. Also, the appellant had symptoms of dysuria over the years but his tests for chlamydia have always been negative. The examiner concluded that there was no evidence of a current diagnosis of acute or chronic Reiter's syndrome, and that it was less likely than not that any form of current or recent Reiter's syndrome originated during the appellant's ACUDTRA dates. In addressing the appellant's contentions as to contamination from air gun vacations during service, the examiner indicated that there was evidence that hepatitis could be transmitted via air gun immunization there was no evidence to date the common infectious agents in Reiter's syndrome have ever been transmitted via air gun. The pathogens that cause the types of infections associated with Reiter's syndrome were not blood-borne pathogens. While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008). In this case, the Board finds that that the April 2013 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the appellant's entire claims file, in consideration of the appellant's reported history, and based on extensive evaluation of the appellant. The examiner considered the appellant's complete record, which included the positive medical evidence showing a diagnosis of Reiter's syndrome. Significantly, the VA examiner's findings are consistent with the medical evidence of record which is negative for evidence of current active disease. There is nothing in those treatment records showing that the appellant currently has active Reiter's syndrome. Notably, the findings of Reiter's syndrome in the earlier examination reports appear to be based on an assumption that the appellant had the disease, but not on formal testing to see whether it was active. Importantly, the eye examination report showed that he did not have residuals related to Reiter's syndrome. Accordingly, the Board concludes that the latest VA opinion is found to carry significantly more weight than the earlier reports. The Board finds that based on the evidence of record that the appellant does not currently have Reiter's syndrome. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection is not warranted. In making all determinations, the Board has considered the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As to the appellant's contentions that he currently has Reiter's syndrome, the Board acknowledges that the appellant is competent to testify as to his symptoms. However, there is nothing in the record to suggest that the appellant has the appropriate training, experience, or expertise to render a diagnosis of a complex infection. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the appellant is competent to report what he has experienced, he is not competent to ascertain the diagnosis of any current disease, as such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). For all of these reasons, the Board gives more credence and weight to the April 2013 VA examiner's opinion as it was rendered after an extensive evaluation of the appellant and comprehensive review of his by a licensed medical professional. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the appellant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the appellant's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for Reiter's syndrome, claimed as due to a contaminated injection, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs