Citation Nr: 21042272 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 10-31 986A DATE: July 12, 2021 ORDER For the initial rating period from January 1, 2009 to September 27, 2019, an initial disability rating of 100 percent for Reiter's syndrome, to include a history of iritis, prostatitis, degenerative joint disease of the bilateral feet, knees, ankles, and hands, and irritable bowel syndrome (IBS), is granted. FINDING OF FACT For the initial rating period from January 1, 2009 to September 27, 2019, the service-connected Reiter's syndrome more nearly approximates rheumatoid arthritis manifested by constitutional manifestations associated with active joint involvement that are totally incapacitating. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the initial rating period from January 1, 2009 to September 27, 2019, the criteria for an initial disability rating of 100 percent for the service-connected Reiter's syndrome, to include a history of iritis, prostatitis, degenerative joint disease of the bilateral feet, knees, ankles, and hands, and IBS, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1986 to December 1989, November 1991 to May 1992, July 1993 to April 1998, and from November 1998 to December 2008. This matter is on appeal from an April 2009 rating decision. In April 2014, September 2016, October 2017, and February 2019, the Board remanded the claim on appeal for additional development. The case now returns to the Board after satisfaction of the prior remand directives. Disability Rating Legal Authority Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Rating Reiter's Syndrome For the initial rating period on appeal from January 1, 2009 to September 27, 2019, the service-connected Reiter's syndrome is rated at 60 percent under the criteria at 38 C.F.R. § 4.71a, DC 5002 as a condition rated by analogy to rheumatoid arthritis. The Veteran is already in receipt of a 100 percent disability rating for the initial rating period from September 27, 2019 forward. Under DC 5002, a claimant is awarded the higher of two ratings, rated either (1) as an active process or (2) based on the chronic residuals associated with the disease such as limitation of motion or ankylosis. For active process, a 100 percent rating is assigned for constitutional manifestations associated with active joint involvement which are totally incapacitating. A 60 percent rating is assigned for less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times per year or a lesser number over prolonged periods. 38 C.F.R. § 4.71a, DC 5002. For chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, the disability is rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5002. A Note to DC 5002 provides that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. Id. After review of the lay and medical evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that, for the initial rating period from January 1, 2009 to September 27, 2009, the service-connected Reiter's syndrome more nearly approximates rheumatoid arthritis manifested by constitutional manifestations associated with active joint involvement that are totally incapacitating. Following review of the record and interview and examination of the Veteran, a June 2014 VA examiner wrote that it was clear that the Veteran still had active inflammatory arthritis due to Reiter's syndrome. The June 2014 VA examiner explained that a brief interruption in the Veteran's medication (Enbrel), as would be required for any infection, led to severe exacerbation, and Enbrel was the third medication used by the Veteran due to poor response to the prior two medications (Remicade and Humira). The June 2014 VA examiner wrote that, unfortunately, the Veteran appeared to be a partial responder to Enbrel and had never achieved remission with the drug, with daily morning stiffness and joint pain when he was stable as well as episodic flares, which can be disabling and occurring at least once between the bi-monthly evaluations, or about six times per year. The June 2014 VA examiner added that the medication (Enbrel) will be resumed while the Veteran was being treated for the fungal infection due to a fear that he will be incapacitated if treatment was withheld further. The June 2014 VA medical opinion indicates that there were constitutional manifestations of Reiter's syndrome associated with active joint involvement of the which were likely to be totally incapacitating without the ameliorating effects of medication, which is a disability picture that approximates the 100 percent schedular rating criteria under DC 5002 based on active process of rheumatoid arthritis. Because the June 2014 VA examiner has medical training and expertise as a physician specializing in the area of physical medicine and rehabilitation, had adequate facts and data on which to base the medical opinion, and supported the medical opinion with adequate rationale, the June 2014 VA medical opinion is of significant probative value. The June 2014 VA medical opinion is also consistent with the September 2019 VA medical opinion that the Veteran's arthritis was manifested by constitutional manifestations associated with active joint involvement which were totally incapacitating. The September 2019 VA medical opinion was the basis for the AOJ's grant of a 100 percent rating for Reiter's syndrome effective from September 27, 2019 in the August 2020 rating decision. The March 2021 VA reviewer provided a negative medical opinion on the question of whether the Veteran would experience constitutional manifestations associated with active joint involvement that is totally incapacitating without the ameliorating effects of medication; however, the March 2021 VA medical opinion was based, in part, on the inaccurate factual premise that that there was no indication in the record that the Veteran had exacerbations of constitutional symptoms when off medications when the evidence actually shows a severe exacerbation of constitutional symptoms when the Veteran had a brief interruption in medication. For this reason, the March 2021 VA medical opinion is of no probative value. Like the March 2021 VA reviewer, the January 2017 and March 2018 VA examiners opined that the Reiter's syndrome was not manifested by constitutional manifestations associated with active joint involvement which are totally incapacitating. The January 2017 and March 2018 VA examiners alternatively opined that Reiter's syndrome was manifested by exacerbations that were not incapacitating; however, neither VA examiner adequately addressed the ameliorating effects of medication, thus, the Board finds that the January 2017 and March 2018 VA medical opinions are outweighed by the June 2014 and September 2019 VA medical opinions. Although there has been some fluctuation in symptoms and functional impairment and symptoms of Reiter's syndrome during the rating period on appeal, the overall severity of Reiter's syndrome was essentially unchanged throughout the entire initial rating period. In consideration thereof, and resolving reasonable doubt in the Veteran's favor, the Board finds that the disability picture for the service-connected Reiter's syndrome more closely approximates rheumatoid arthritis manifested by constitutional manifestations associated with active joint involvement which are totally incapacitating so that the criteria for a 100 percent rating under DC 5002 are met for the entire initial rating period on appeal from January 1, 2009 to September 27, 2019. 38 C.F.R. § 38 C.F.R. §§ 4.3, 4.7. Because no compensable residuals are shown for iritis, prostatitis, or IBS during the initial rating period, separate ratings for such residual disabilities under potentially applicable DCs are not warranted. E. CHOI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, Counsel 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED