Citation Nr: 18160074 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 08-36 409 DATE: December 21, 2018 REMANDED Entitlement to service connection for reactive arthritis, claimed as Reiter's syndrome is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, had service from September 1977 to September 1979. The Veteran testified at a Board hearing at the RO in May 2009. A copy of the transcript of that hearing has been associated with the record. The Board remanded the matter in April 2010 for additional development. In October 2011, the Veteran was informed that the Veteran’s Law Judge (VLJ) who presided over the May 2009 hearing was no longer employed by the Board, and the Veteran had the opportunity to request a hearing before a new VLJ. The Veteran did not respond to the request, and thus waived his right to a new hearing. The Board denied the claim in January 2012. That decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in a Unilateral Motion for Remand of February 2014, pursuant to a settlement agreement in the case of National Org. of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013). The Veteran elected to receive a new hearing and decision from the Board that would correct any potential due process error relating to the duties of the VLJ that conducted the May 2009 hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a VLJ has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked). The claim was remanded in August 2014 pursuant to Bryant, and the Veteran was provided a new hearing in June 2015 before the undersigned VLJ. The claim was remanded again for additional development in August 2015. In June 2016, the Board denied service connection for reactive arthritis. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Court issued a Memorandum Decision, vacating the decision with respect to the issue described above, and remanding the matter to Board for further action. 1. Entitlement to service connection for reactive arthritis, claimed as Reiter's syndrome is remanded. The Board previously denied service connection for reactive arthritis in a June 2016 decision. However, in a March 2018 Memorandum Decision, the Court found that the Board relied principally on the February 2016 VA medical opinion, which found that the Veteran’s reactive arthritis was less likely than not aggravated beyond its normal progression by his military service. The VA examiner supported his opinion by stating that there was no evidence that the Veteran had any signs or symptoms of reactive arthritis during service or immediately following his separation from service. Yet, the record contradicts the February 2016 examiner’s statement: the record indicates that the Veteran was receiving a prescription for his reactive arthritis during service and that he had iritis during service, which the VA examiner acknowledged could be a symptom of reactive arthritis. This evidence was not previously addressed by the examiner or the Board. The Court found that the examiner clearly used a much less stringent standard and further stated the Board’s general statement that the opinion overall met the proper standard was not sufficient to show that the examination substantially complied with the August 2015 remand order. The prior Board remand specifically asked the examiner to render an opinion using the “clear and unmistakable evidence” standard. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Cotant v. Principi, 17 Vet. App. 116, 131(2003) (stating that a doctor's "rather equivocal opinion, even standing alone, was far from the kind of unconditional evidence necessary to meet the very demanding clear-and-unmistakable-evidence standard"); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993) (holding that an opinion that "there are signs which indicate" that a condition existed prior to service and that it was "probable, but not absolutely certain" that a condition existed prior to service was not sufficient to provide clear and unmistakable evidence to rebut the presumption of soundness). As a result, the Board now finds that remand is appropriate in order to request an addendum VA medical opinion to adequately address this issue. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s reactive arthritis. The claims folder must be made available for review in connection with this examination. The examiner must use the appropriate standard (as underlined in each directive) while providing a complete rationale for all conclusions reached. First, the examiner must determine whether reactive arthritis is related to the tardy ulnar nerve condition noted on the December 1976 report of medical examination, and/or the May 1979 medical discharge, to include whether the ulnar nerve condition was a symptom/early manifestation of his current reactive arthritis. Next, the examiner must opine on the following: (a.) If the tardy ulnar nerve condition is not related to the reactive arthritis, then the examiner must answer the following: i. whether the Veteran’s reactive arthritis clearly and unmistakably (undebatable) pre-existed service. ii. If the Veteran’s reactive arthritis clearly and unmistakably pre-existed service, determine whether the pre-existing injury clearly and unmistakably (undebatable) was not aggravated (not permanently increased in severity beyond the natural progress of the disability) by service. (b.) If the tardy ulnar nerve condition was an early manifestation of the Veteran’s current reactive arthritis or is otherwise related to his reactive arthritis, then the examiner must opine on the following: i. whether it is at least as likely as not (50 percent or more probability) that the Veteran’s reactive arthritis, and/or any potentially related condition, to include the ulnar nerve condition, was aggravated (non-temporary increase in severity) by service. ii. If the reactive arthritis/ulnar nerve condition was aggravated during service, was any increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? (c.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Connally, Counsel