Citation Nr: 1341490 Decision Date: 12/16/13 Archive Date: 12/31/13 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 Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service 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 November 2010 and June 2013, the Board remanded the Veteran's appeals to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. With respect to the Veteran's claim of entitlement to a separate rating for depression, the Board had previously 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). 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. A review of the documents in such file does not reveal any additional documents pertinent to the claims on appeal. The appeal is REMANDED to the RO via the AMC, in Washington, D.C. VA will notify the Veteran if further action is required. 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. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he 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). The Veteran asserts that his service-connected genitourinary disabilities were manifested by recurrent urinary tract infections and chronic prostatitis, which have either caused or aggravated the claimed Reiter's syndrome and/or arthritis. The Board has sought an etiological opinion as to this claim on multiple occasions. As discussed in the Board's June 2013 remand, the February 2011 VA examiner provided an opinion as to direct service connection only but failed to address or consider whether the current Reiter's syndrome/reactive arthritis is aggravated by the Veteran's service-connected genitourinary disabilities. The Board's June 2013 remand directed that an opinion as to whether the Veteran's current Reiter's syndrome/reactive arthritis is aggravated by his service-connected genitourinary disabilities was to be obtained. Such an opinion was obtained in September 2013. The examiner opined that the Veteran's claimed Reiter's syndrome clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression of an in-service injury, event or illness. The examiner reasoned that the Veteran did not have any documented clinically active Reiter's syndrome for at least the last five years as defined by the presence of the diagnostic triad of reactive arthritis, conjunctivitis and noninfectious urethritis, and hence could not be aggravated by his service-connected genitourinary medical problems. However, the Veteran has been diagnosed with Reiter's syndrome during the course of the appeal, including in February 2011. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to the adjudication of the claim). In light of this deficiency, it is unlikely that this opinion would survive judicial scrutiny. With regards to the Veteran's claim for a separate rating for an acquired psychiatric disorder, he has asserted that his depression is a separate condition from his Grave's disease and warrants a separate rating. In the alternative, he has asserted that his depression existed prior to service and was worsened by service. As discussed in the Board's June 2013 remand, the evidentiary record contains evidence which suggests that the Veteran's hypothyroidism did not involve depression, that the depression was incurred during service and increased therein and that the depression was incurred in conjunction with other medical conditions. The Board's June 2013 remand directed that an opinion as to whether the Veteran's current psychiatric condition was a component of, or secondary to, his service-connected hypothyroidism disability or whether it was a separate and distinct condition for which a separate rating was to be obtained. Such an opinion was obtained in September 2013. The examiner opined that it was less likely than not that the Veteran's depression was incurred in or caused by the claimed in-service injury, event or illness and that it was at not at least as likely as not proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that people who experienced symptoms of depression due to hypothyroidism have symptoms that subside once the hypothyroidism had been corrected by means of thyroid supplementation. However, the examiner failed to address aggravation and failed to provide a rationale as to direct service connection, as the provided rationale was applicable to secondary service connection only. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). In addition, the examiner failed to address whether the Veteran's thyroid functioning had been normal throughout the appeal. In light of this deficiency, it is unlikely that this opinion would survive judicial scrutiny. 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). In Stegall, the Court held that "where ... the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. In light of the deficiencies detailed above, these matters must be remanded to ensure compliance with the Board's previous remands. Accordingly, the case is REMANDED for the following action: 1. Return the claims file, to include a copy of this remand, to the September 2013 VA examiner for an addendum opinion. If the examiner who drafted the September 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. With regards to the Veteran's current Reiter's syndrome/reactive arthritis, is it as least as likely as not (i.e., a probability of 50 percent) that the condition was 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 therefore and the functional impairment caused thereby, aggravates the Veteran's current Reiter's syndrome/reactive arthritis. In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 2. Return the claims file, to include a copy of this remand, to the September 2013 VA examiner for an addendum opinion. If the examiner who drafted the September 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. (a) With regards to whether the Veteran's current mood disorder, 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 his service-connected hypothyroidism? In other words, is it likely that the current mood disorder was caused by the service-connected hypothyroidism? (b) 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. (c) 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? In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. After completing the above actions, to include 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 claim remains 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. 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). 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). _________________________________________________ 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) (2013).