Citation Nr: 18157275 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-60 537 DATE: December 12, 2018 ORDER 1. The appeal to reopen a claim of service connection for left elbow arthritis is granted. 2. The appeal to reopen a claim of service connection for right elbow arthritis is granted. 3. The appeal to reopen a claim of service connection for left hand arthritis, to include the fingers, is granted. 4. The appeal to reopen a claim of service connection for right hand arthritis, to include the fingers, is granted. 5. The appeal to reopen a claim of service connection for left knee arthritis is granted. 6. The appeal to reopen a claim of service connection for right knee arthritis is granted. 7. The appeal to reopen a claim of service connection for left foot arthritis, to include the fingers, is granted. 8. The appeal to reopen a claim of service connection for right foot arthritis is granted. 9. The appeal to reopen a claim of service connection for low back arthritis, claimed as Reiter's syndrome, is granted. 10. The appeal to reopen a claim of service connection for tinnitus is granted. REMANDED 11. Entitlement to service connection for left elbow arthritis is remanded. 12. Entitlement to service connection for right elbow arthritis is remanded. 13. Entitlement to service connection for left hand arthritis, to include the fingers, is remanded. 14. Entitlement to service connection for right hand arthritis, to include the fingers, is remanded. 15. Entitlement to service connection for left knee arthritis is remanded. 16. Entitlement to service connection for right knee arthritis is remanded. 17. Entitlement to service connection for left foot arthritis is remanded. 18. Entitlement to service connection for right foot arthritis is remanded. 19. Entitlement to service connection for low back arthritis, claimed as Reiter's syndrome, is remanded. 20. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A December 2012 rating decision denied service connection for arthritis of the left elbow, right elbow, left hand (to include the fingers), right hand (to include the fingers), left knee, right knee, left foot, right foot, and low back, finding that such disabilities preexisted, and not aggravated in, service, and were not related to service. 2. Evidence received since the December 2012 rating decision shows arthritis of the left elbow, right elbow, left hand (to include the fingers), right hand (to include the fingers), left knee, right knee, left foot, right foot, and low back may be related to the Veteran’s service. 3. A December 2012 rating decision denied service connection for tinnitus, finding that such disability was not manifested in, or shown to be related to, the Veteran’s service. 4. Evidence received since the December 2012 rating decision shows that the Veteran’s tinnitus may be related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus; and raises a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for left elbow arthritis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received, and the claim of service connection for right elbow arthritis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has been received, and the claim of service connection for left hand arthritis, to include the fingers, may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. New and material evidence has been received, and the claim of service connection for right hand arthritis, to include the fingers, may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. New and material evidence has been received, and the claim of service connection for left knee arthritis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 6. New and material evidence has been received, and the claim of service connection for right knee arthritis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 7. New and material evidence has been received, and the claim of service connection for left foot arthritis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 8. New and material evidence has been received, and the claim of service connection for right foot arthritis may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 9. New and material evidence has been received, and the claim of service connection for a low back disability, claimed as Reiter's syndrome, may be reopened 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 10. New and material evidence has been received, and the claim of service connection for tinnitus may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1990 to May 1991, and had additional service with the National Guard. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a March 2015 rating decision. The Veteran's service treatment records (STRs) show that in December 1990 he was seen for migratory polyarthropathy. He reported that he was sero negative. He had no rash, gastrointestinal or visual complaints. It was noted he had occasional dysuria. It was noted that Reiter's syndrome can be controlled with medication. He was seen two days later and it was noted that he had swelling of the right wrist and first two digits of his right hand about five years earlier. He was treated with medication and told that he had an illness similar to rheumatoid arthritis. He stated that he had had frequent “attacks” of arthritis with swelling of the wrist, left elbow, first two digits of each hand, back stiffness and knees. The assessment was probable Reiter's syndrome. In January 1991, the Veteran complained of arthritis for four years. Later in January 1991, he was seen in the rheumatology clinic and it was noted that he had a five-year history of recurrent, evanescent arthritis involving multiple joints, including both knees, wrists, ankles, back and Achilles tendons. The examiner stated that there were no physical findings to support the complaints. The impression was possible Reiter's syndrome. In February 1991, he was seen for recurring joint pain in the right wrist, left hand at the palmar area, joints of the fingers and low back pain. It was noted that there was no recurrence of a penile shaft lesion or rectal bleeding. In February 1991, he stated that he had a herniated disc in 1986 and had not had proper movement since then. He stated that he was in traction. The assessment was muscle spasm. In March 1991, the Veteran's record was reviewed. It was noted that he might have had an episode at some point that could have been diagnosed as Reiter's syndrome, although testing was negative. He had complaints of arthralgias, but did not have any objective evidence of arthritis on physical examination, previous X-rays or on erythrocyte sedimentation rate. The examiner stated that his history of a recurrent lesion on the shaft of the penis and occasional painful oral lesions were not typical of Reiter’s. In an April 1991 report of medical history, the Veteran reported recurrent back pain. He denied a painful elbow, a trick or locked knee and bone/joint deformity. The physician’s summary noted a herniated nucleus pulposus in 1986 that was treated with traction. On April 1991 service separation examination, the upper and lower extremities and feet were normal. The spine was abnormal; it was noted that he had full range of motion and a mild spasm on the right. The Veteran's service discharge examination shows that he was a canon crewmember. On February 2012 VA back examination, the Veteran stated that he originally injured his back while moving furniture at home. He was hospitalized and diagnosed with a herniated disc. It was noted that March 2010 X-rays showed minimal narrowing of L5-S1. The diagnoses were lumbosacral strain and muscle spasms, and lumbar disc disease with radicular pain. The examiner indicated that the current examination findings were consistent with disc herniation. He opined that a review of the record showed that the Veteran's back problem was a preexisting condition and found no evidence of aggravation or permanent worsening of the back condition during service. On February 2012 VA foot, hand, elbow and knee examinations, the Veteran stated that he began to have episodes of pain/swelling in multiple joints beginning in the mid 1980’s. He reported a prior history of a viral infection in his left eye, a remote history of mouth ulcers, and one episode of a penile lesion. He stated that he was still having recurrent episodes of migratory polyarthralgias involving various joints. The diagnosis was migratory polyarthropathy. The examiner reviewed the record and opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond natural progression by an in-service injury, event or illness. The examiner noted that he would defer to a rheumatology physician for a final diagnosis. He stated that the record seemed to be clear that the Veteran's condition existed prior to service. He stated that flare-ups are part of the natural history and progression of reactive arthritis type conditions. It was noted that he was asymptomatic on examination. On February 2012 VA arthritis examination, the Veteran stated that his symptoms began around 1990. He described migratory polyarthritis, noting that his symptoms start in one hand and progress to the other hand, the feet and knees. He also complained of low back pain. The examiner stated that the Veteran did not have a diagnosis of an inflammatory or infectious arthritis. He said that the clinical history, physical examination and laboratory studies are inconsistent with Reiter's syndrome or any other inflammatory or autoimmune polyarthritis. He noted that previous serology, the rheumatoid factor and anti-CCP antibodies were negative. He stated that there was no history of infection preceding the onset of arthritis. On February 2012 VA tinnitus examination, the Veteran stated that he had tinnitus that began a “while ago,” but he could not provide a specific onset. It was noted that he had a clinical hearing loss and that it was at least as likely as not that tinnitus was associated with the hearing loss. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by service. She noted that he had normal hearing on service separation examination. She also opined that it was less likely than not that the Veteran's tinnitus was caused by, or a result of, noise exposure in service. She stated that there was no clear nexus between military noise exposure and the onset of tinnitus. On May 2012 VA back, elbow, hand, knee and ankle examinations, the diagnoses were lumbosacral strain and lumbar disc disease with radicular pain and migratory polyarthritis (unspecified inflammatory polyarthritis). The examiner reviewed the record and opined that it was less likely than not that the claimed conditions were incurred in or caused by service. He stated that the Veteran's condition began no later than 1987 and potentially before then, and thus prior to service. He noted that the Veteran was unable to associate any illness preceding the first instance of joint involvement. He said that the Veteran indicated that he had mouth ulcers since his late teens or early 20’s, and that he had been having a recurrent skin lesion on his penis. The examiner stated that without an associated defined illness, a definitive diagnosis of reactive arthritis could not be confirmed. He noted that the Veteran's CCP, rheumatoid factor and B27 were negative. Given the negative CCP and rheumatoid factor, rheumatoid arthritis was ruled out. The examiner noted that by history, the Veteran had migratory polyarthropathy affecting the elbow, hand, knees, Achilles tendon and possibly the lower back. The Veteran was having symptoms from one joint to another without having multiple locations being affected simultaneously. The examiner said that since he could not confirm an infection prior to the first event, he could not state definitively that the Veteran has Reiter’s syndrome (reactive arthritis). His history was clearly that of migratory polyarthritis (unspecified inflammatory polyarthritis). Since it began in 1987 or earlier, it was less likely than not to have been caused or worsened by service. The examiner noted that the Veteran stated that he was hospitalized for back spasms in 1986 and told he had herniated disc. During service, he continues to have symptoms consistent with natural progression. He opined that it was less likely than not that the Veteran's back condition had been altered from natural progression by service. He noted that by March 2010, 19 years after service, X-rays indicated only minor narrowing which would be [consistent with that found] in normal population and not worsened by service in a Veteran with a prior back injury. VA outpatient treatment records show that in July 2011 the Veteran reported the onset of tinnitus for two months. In October 2011, he stated he was in artillery for many years. A December 2012 rating decision denied service connection for the disabilities at issue, essentially on the basis that such disabilities preexisted service and were not aggravated by service, or were not incurred in or caused by service. Regarding tinnitus, service connection was denied on the basis that there was no nexus between his noise exposure in service and tinnitus. The Veteran was notified of the December 2012 rating decision and did not appeal it. In January 2013, C.A. Ozborn, M.D., stated that the Veteran served in the artillery and his ears started ringing. After reviewing the Veteran's medical records and based on his history, he opined that his hearing loss was linked to auditory trauma in service. He stated that the Veteran had tinnitus due to auditory nerve damage. In May 2018, D. Booth, M.D., stated that he reviewed the Veteran's STRs. He said that the symptoms and findings documented from 1990 to 1991 were sufficient to diagnose Reiter's syndrome. He cited the fact that the Veteran had migratory arthritis involving multiple joints and bloody diarrhea. He noted that there was clear and convincing evidence that Reiter's syndrome had been aggravated beyond its natural progression during the Veteran's service. Finally, he stated that it was at least as likely as not that the Veteran's current Reiter's syndrome is the same as, or a natural progression of, the symptoms noted in service. Claims to reopen When there is a final denial on a claim of service connection, such claim may not be reopened and allowed on the same factual basis. 38 U.S.C. § 7105. However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The requirement that new and material evidence must raise a reasonable possibility of substantiating a claim is a low threshold requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. The appeal to reopen a claim of service connection for left elbow arthritis is granted. 2. The appeal to reopen a claim of service connection for right elbow arthritis is granted. 3. The appeal to reopen a claim of service connection for left hand arthritis, to include the fingers, is granted. 4. The appeal to reopen a claim of service connection for right hand arthritis, to include the fingers, is granted. 5. The appeal to reopen a claim of service connection for left knee arthritis is granted. 6. The appeal to reopen a claim of service connection for right knee arthritis is granted. 7. The appeal to reopen a claim of service connection for left foot arthritis is granted. 8. The appeal to reopen a claim of service connection for right foot arthritis is granted. 9. The appeal to reopen a claim of service connection for low back arthritis, claimed as Reiter's syndrome, is granted. 10. The appeal to reopen a claim of service connection for tinnitus is granted. As the December 2012 final rating decision denied service connection for these disabilities on the basis that they either preexisted, and were not aggravated by, service, or were not shown therein, for evidence received since to relate to an unestablished fact necessary to substantiate the claims (and be new and material), it would have to tend to show that the Veteran has such disabilities that are/may be related to his service. Evidence received since the December 2012 rating decision includes a statement from Dr. Booth that the Veteran has Reiter's syndrome which had its onset in service. Regarding tinnitus, Dr. Ozborn opined that the Veteran's tinnitus was related to is noise exposure in service. Such evidence bears directly on the unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. Therefore, it is new and material, and the claims of service connection for each disability at issue may be reopened. REASONS FOR REMAND 11. Service connection for left elbow arthritis. 12. Service connection for right elbow arthritis. 13. Service connection for left hand arthritis, to include the fingers. 14. Service connection for right hand arthritis, to include the fingers. 15. Service connection for left knee arthritis. 16. Service connection for right knee arthritis. 17. Service connection for left foot arthritis. 18. Service connection for right foot arthritis. 19. Service connection for low back arthritis, claimed as Reiter's syndrome. 20. Service connection for tinnitus. The record shows that the Veteran had National Guard service for approximately nine years prior to his active duty service. Evaluation and treatment records from such are not associated with the record. As they may contain pertinent information, they must be sought. As noted above, the Veteran stated he was treated for a herniated nucleus pulposus in 1986; records pertaining to such treatment are not in the record. Considering the conflicting opinions of record (none fully adequate), additional examinations to ascertain the nature and etiology of the claimed disabilities are necessary. The matters are REMANDED for the following: 1. Obtain for the record the complete medical records from the Veteran's National Guard service. If they cannot be located, the scope of the search for the records must be noted in the record. 2. Ask the Veteran to identify all providers of evaluations and treatment he received for his low back in 1986 (when he reported he had a herniated nucleus pulposus). Obtain complete clinical records pertaining to the treatment. 3. Then arrange for the Veteran to be examined by an appropriate clinician (rheumatologist?) to confirm the existence/determine the nature and etiology of his claimed polyarthritis of the elbows, hands, knees, feet and low back. The Veteran’s record must be reviewed by the examiner, and any studies indicated should be completed. The examiner must reconcile the conflicting opinions in the record, opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s has Reiter's syndrome/arthritis of the elbows, hands, knees and low back; and, if so, opine whether the disability/disabilities are, at least as likely as not, etiologically related to his service/complaints therein. The examiner should also opine whether there is undebatable medical evidence that Reiter’s syndrome pre-existed service; if so identify such evidence and opine whether there is also undebatable medical evidence that Reiter's syndrome was not aggravated by service (such as evidence of no increase during service). The examiner must include rationale with all opinions. The rationale must address (express agreement or disagreement with, with rationale) Dr. Booth’s opinion. 4. The Veteran record should be forwarded to an audiologist for review and an advisory medical opinion regarding the likely etiology of the Veteran’s tinnitus, and specifically, whether it is at least as likely as not (a 50% or greater probability) that it is etiologically related to his service, to include as due to his exposure to noise trauma therein. The consulting provider must include rationale with all opinions; the rationale should include comment on (express agreement or disagreement with) the opinion by Dr. Ozborn. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Siegel, Counsel