Citation Nr: 21066414 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 14-30 269 DATE: October 29, 2021 REMANDED Compensation benefits under the provisions of 38U.S.C.§1151 for rheumatoid arthritis (claimed as reactive arthritis) is remanded. REASONS FOR REMAND The Veteran, who is the Appellant, served on active duty from November 1978 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision from the Regional Office (RO), which denied compensation pursuant to 38 U.S.C. § 1151 for reactive arthritis. In November 2016, the Veteran testified at a Board videoconference hearing from the RO in Milwaukee, Wisconsin, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. The issue of § 1151 benefits for rheumatoid arthritis was previously before the Board in June 2018 and May 2019. In the May 2019 Board Decision, the Board denied § 1151 benefits for rheumatoid arthritis. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2020 Joint Motion for Remand (JMR), the parties agreed that a remand was warranted for the Board to determine whether a reasonable provider seeking informed consent would have disclosed the possibility of developing reactive arthritis from the influenza (flu) vaccine. In September 2020, the Board remanded for additional development so Dr. Byron could provide the Vaccine Safety Manual he purported to rely upon that listed reactive/rheumatoid arthritis as a known adverse effect of the flu vaccine. The requested evidence was not provided. Thereafter, the Board denied § 1151 benefits for rheumatoid arthritis in a December 2020 Board Decision. The Veteran again appealed the issue to the Court. In an August 2021 JMR, the parties agreed that a remand was warranted for the Board to obtain a new medical opinion that adequately addresses whether rheumatoid arthritis was caused by the flu shot and to consider Dr. Byron's September 2020 opinion. In a June 2014 opinion, the VA examiner opined that the Veteran's arthritis is due to other etiologies, as a review of the medical literature from the Institute of Medicine and UpToDate reveals no mention of the flu vaccine giving rise to reactive arthritis. The VA examiner explained that there have been reports of an immediate IgE-mediated hypersensitivity reaction to flu shots, but the reaction is self-limiting, does not involve joints/arthritis, and typically did not go on for months or years. The VA examiner also noted that, at that time, the specialist that treated the Veteran indicated that the reactive arthritis periodically flares up and is due to a dermatological rash of unclear etiology, which is more common as the Veteran had an inflammatory joint aspirate and skin biopsy compatible with eczematous dermatitis pointing to and allergy-mediated reaction. The parties agreed that the examiner improperly focused on other etiologies for reactive/rheumatoid arthritis instead of focusing on whether there is a link between rheumatoid arthritis and the flu shot. In a February 2018 Veterans Health Administration opinion, the examiner, who specializes in rheumatology and immunology, opined that the Veteran did not sustain an additional disability of rheumatoid arthritis from the immunization and that the etiology of this condition has a basis other than immunization. The VHA examiner explained that, while immunization is associated with some activation of the immune system, which is part of the ordinary host defense and can lead to some transient arthralgia and myalgia, it is not known to provoke either reactive arthritis or rheumatoid arthritis since the challenge to the immune system is limited and transient. The VHA examiner further noted that while some investigators have discussed a reaction to adjuvants, which are part of certain vaccines, these ideas are not widely held or considered to be scientifically valid. The parties agreed that the VHA examiner did not provide a "sufficient rationale" for the conclusion that the rheumatoid arthritis is not etiologically related to the flu shot. As such, the Board will remand for another opinion to help assess whether the current rheumatoid arthritis was caused by the flu shot and, if so, whether the development of rheumatoid arthritis was the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in administering the flu shot, or was a reasonably foreseeable outcome of the flu shot. Section 1151 benefits for rheumatoid arthritis is REMANDED for the following action: 1. Contact the Milwaukee VA Medical Center to obtain and associate with the claim file a copy of the CDC Vaccine Information Statement (VIS) for Influenza Vaccine that was given to Veteran prior to administering the December 2012 flu shot (as indicated in a December 2012 VA treatment record) and/or a signed copy of any December 2012 informed consent form for the flu vaccine. If any requested records are not available, or the search for any such records otherwise yields negative, that fact should clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and representative. 2. Schedule the appropriate file review for VA medical opinions. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: a) Is it at least as likely as not (50 percent or higher degree of probability) that an additional disability of rheumatoid arthritis was caused by VA medical treatment, to include providing the flu vaccine in December 2012? In rendering the requested opinion, the examiner should summarize and cite to the medical and lay evidence of record, as well as any medical literature or treatise the examiner relied upon to support the opinion provided. Additionally, the examiner should specifically address Dr. Byron's May 2018 and September 2020 opinion, to include whether the examiner agrees or disagrees with the conclusions drawn therein. b) If the examiner opines that the Veteran's rheumatoid arthritis was caused the VA administered flu shot, is it as likely as not (50 percent or higher degree of probability) that the Veteran developed an additional disability of rheumatoid arthritis due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in administering the December 2012 and October 2017 flu shots? (Continued on the next page) c) The VA examiner should provide an opinion, based upon the specific facts and circumstances of this Veteran's case, regarding whether is it as likely as not (50 percent or higher degree of probability) that rheumatoid arthritis was a reasonably foreseeable outcome of the December 2012 VA-administered flu shot. The examiner should opine as to whether a reasonable health care provider would have considered rheumatoid arthritis to be an ordinary risk of the flu shot, and whether the risk of rheumatoid arthritis was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of the December 2012 VA-administered flu shot. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.