Citation Nr: 1339171 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 08-30 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for Reiter's syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 1978 to December 1995. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in part, granted service connection for Reiter's syndrome and assigned a 20 percent evaluation. In May 2011, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. As discussed during the May 2011 hearing, the Veteran also testified in an October 2006 hearing before a different Veterans Law Judge, who rendered a decision and remand in November 2007. However, the issue of an increased rating for Reiter's syndrome was not discussed at the October 2006 hearing. The claim was previously remanded in August 2011. The Board has reviewed the Virtual VA system and Veteran's Benefit Management System in connection with this action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case in order to ensure due process. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). At the May 2011 hearing, the Veteran testified he was not taking any medications for his disability. The Veteran was most recently afforded a VA examination in August 2011. At the time, his disability was noted to be an inactive process with chronic residuals of joint strain or arthritis. The examiner noted that Reiter's syndrome was successfully treated. Ongoing treatment for the residuals of the disorder in the knee joint, ankle joint and feet were noted. Similarly, private treatment records of September 2011 note that no active inflammatory process was noted. The Veteran was to continue over the counter antiinflammatory treatment. However, subsequent records of January 2012, note the Veteran was to continue with his methotrexate as prescribed. The evidence above shows the Veteran has gone from requiring only over the counter anti -inflammatories for treatment of the chronic residuals of Reiter's syndrome, to needing a highly controlled prescription medication. It is unclear from the record as to whether the Reiter's syndrome is now active and therefore requires stronger medication, or whether the residuals have increased in severity while the condition has remained inactive. At a minimum, the evidence shows a potential increase in the severity of the disability. Therefore, an updated VA examination is required in order to make an informed decision regarding the Veteran's current level of functional impairment and evaluate adequately his current level of disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA should have provided an examination based on Veteran's complaint of increased hearing loss since his examination two years before). VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the current severity of his Reiter's syndrome. The examiner is requested to review all pertinent records associated with the claims file and address the following matters: a) The examiner is requested to address whether the Veteran's Reiter's syndrome is currently an active process or an inactive process with chronic residuals. i) If it is an active process, the examiner should describe the impairment of health, to include but not exclusive of any weight loss or anemia, experienced by the Veteran as a result of his service-connected Reiter's syndrome, as well as indicate the frequency, duration, and severity of any incapacitating exacerbations of this condition. ii) If it is an inactive process with "chronic residuals", the examiner is requested to describe any chronic residuals noted in the record or shown on examination. b) The examiner should also review all pertinent records dated throughout the appeal and determine the status of the Veteran's disability (i.e. at various points in time was Reiter's syndrome an active process or an inactive process with chronic residuals). c) For any time during this period in which the examiner determines that the Veteran's Reiter's syndrome has been an active process, the examiner is requested to describe the impairment of health, to include but not exclusive of any weight loss or anemia, experienced by the Veteran as a result of his service-connected Reiter's syndrome, as well as indicate the frequency, duration, and severity of any incapacitating exacerbations of this condition. d) For any time during this period in which the examiner determines that the Veteran's Reiter's syndrome has been an inactive process with "chronic residuals", the examiner is requested to describe any chronic residuals noted in the record. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder must be made available to and reviewed by the examiner. The rationale for all findings and conclusions should be set forth in a legible report. In the extraordinary circumstance that the examiner is unable to provide a requested opinion without resort to mere speculation, he or she should so indicate and discuss in detail why an opinion cannot be provided. 2. Notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 3. Readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, provide the Veteran and his representative with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ DAVID L. WIGHT 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).