Veteranclaims’s Blog

February 16, 2018

Single Judge Application; reactive arthritis; Reiter’s syndrome;

Filed under: Uncategorized — Tags: — veteranclaims @ 3:30 pm

Excerpt from decision below:

“However, the record contradicts the February 2016 examiner’s statement. As argued by Mr. Spieker, the record indicates that he was receiving a prescription for his reactive arthritis during service and that he had iritis during service, which the examiner acknowledged could be a symptom of reactive arthritis. Neither the examiner nor the Board addressed this evidence.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-2763
DOUGLAS SPIEKER, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: Douglas Spieker appeals through counsel a June 23, 2016, Board of
Veterans’ Appeals (Board) decision that denied entitlement to VA benefits for reactive arthritis, claimed as Reiter’s syndrome. This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate as the issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the June 23, 2016, Board decision and remand the matter for readjudication consistent with this decision.

I. FACTS
Mr. Spieker served on active duty in the U.S. Navy from September 1977 to May 1979.
Prior to entering service, he was diagnosed with tardy ulnar palsy in the left elbow in December 1976 and treated for Reiter’s syndrome, which is now generally referred to as reactive arthritis, in June 1977. While in service, in February 1979, Mr. Spieker was diagnosed with iritis, also known as anterior uveitis. A March 1979 medical record notes that Mr. Spieker had reactive
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arthritis, for which he was receiving prescription medication. In May 1979, he was discharged with a diagnosis of tardy ulnar nerve palsy of the left elbow.
In August 2007, Mr. Spieker filed a claim for VA benefits for arthritis and joint pains. He underwent a VA medical examination in June 2010, at which the examiner opined that his reactive arthritis, which pre-existed service, was not aggravated beyond its natural progression during service.
At a June 2015 Board hearing, Mr. Spieker testified that he believed that the tardy ulnar nerve condition that he experienced in service was a symptom of his reactive arthritis. Following
that testimony, the Board remanded the matter to provide Mr. Spieker with a new VA examination. As part of that remand order, the Board stated that the examiner should provide an opinion as to whether it is clear and unmistakable that Mr. Spieker’s pre-existing reactive arthritis was not aggravated beyond its natural progression during his military service.
At a January 2016 examination, the VA examiner stated that tardy ulnar nerve palsy and reactive arthritis are not related because tardy ulnar nerve palsy is an abnormal condition characterized by atrophy of the first dorsal interosseous muscle and difficulty in performing fine manipulations, whereas reactive arthritis is an acute inflammatory, asymmetrical bone inflammation, often of the lower limb or foot triggered by local or systemic infections associated with skin eruptions. The examiner opined that there is no evidence indicating that a tardy ulnar nerve condition can cause a reactive arthritis and, thus, it is less likely than not that Mr. Spieker’s reactive arthritis was incurred in or caused by a tardy ulnar nerve condition in service.
The Board subsequently requested another medical opinion, after finding that the January 2016 examiner only addressed whether reactive arthritis was related to the tardy ulnar nerve condition and not whether reactive arthritis was aggravated in service generally. In a February 2016 VA opinion, the examiner discussed the progression of reactive arthritis, noting that it frequently involves weight-bearing joints and can have systemic symptoms including fever and weight loss. The examiner explained that anterior uveitis, which can develop at any time in
HLA-B27 positive patients, is a more clinically significant ocular complication of reactive arthritis. The examiner stated that, while most signs of the disease disappear within days or weeks, the arthritis may persist for several months or become chronic. The examiner noted that
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Mr. Spieker’s service medical records lack any objective, medically based, clinical evidence to support signs and symptoms of reactive arthritis while he was on active duty and immediately following separation. Thus, the examiner opined that “it was less likely than not” that Mr. Spieker’s reactive arthritis, including any potentially related condition, was aggravated beyond its normal scope of progression by his military service or any service-connected disability. Record
(R.) at 65.
On June 23, 2016, the Board issued the decision on appeal. In that decision, the Board
found that Mr. Spieker’s reactive arthritis preexisted his military service. The Board then
discussed the evidence of record including Mr. Spieker’s lay statements as well as the January
and February 2016 VA examinations. The Board found that the preponderance of the evidence
showed that Mr. Spieker’s arthritis was not aggravated by his military service, relying on the
2016 VA medical opinions.
On appeal, Mr. Spieker argues that the Board erred by finding that VA satisfied its duty to
assist because the 2016 examinations were inadequate. Specifically, he argues that the February 2016 VA medical opinion was inadequate because the examiner did not base his opinion on Mr. Spieker’s medical history. He also argues that the Board failed to ensure compliance with its August 2015 remand order because the February 2016 examiner used the wrong standard in rendering an opinion, relying on a “less likely than not” standard, rather than the “clear and unmistakable” standard ordered by the Board. He also argues that the Board provided inadequate
reasons or bases for its decision by relying on inadequate medical opinions, ignoring favorable medical evidence, and dismissing his lay statements.
In response, the Secretary argues that the Court should affirm the Board’s decision
because the January and February 2016 VA opinions were sufficient and substantially complied with the August 2015 Board remand order. The Secretary states that the Board had already conceded that Mr. Spieker had reactive arthritis before and during service and, thus, the only issue is whether his condition was aggravated by service, which the February 2016 VA opinion answered. The Secretary also contends that the Board provided adequate reasons or bases for its
decision because it fully discussed the evidence, including Mr. Spieker’s lay statements, and explained the reasons for its decision.
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II. ANALYSIS
“Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App.
303, 311 (2007). A medical examination is considered adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). Additionally, the opinion must “support its conclusion with
an analysis that the Board can consider and weigh against contrary opinions.” Id. at 124-25; see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”). Further, a remand by this Court or the Board confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11
Vet.App. 268, 271 (1998).
“Whether a medical opinion is adequate is a finding of fact, which this Court reviews
under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104 (2008). A finding
of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the
definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As always, the
Board must provide a statement of the reasons or bases for its determination, adequate to enable
an appellant to understand the precise basis for the Board’s decision as well as to facilitate review
in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert,
1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Mr. Spieker argues that VA failed to satisfy its duty to assist because the February 2016 VA examination relied on by the Board was inadequate. He argues that the examiner failed to address evidence that he had anterior uveitis, which may be a symptom of reactive arthritis,
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during service. He also argues that the examiner ignored a March 1979 medical record, which noted his diagnosis of reactive arthritis and indicated that he was being prescribed medication for that condition.
In denying Mr. Spieker entitlement to VA benefits for reactive arthritis, the Board relied principally on the February 2016 VA medical opinion, which found that Mr. Spieker’s reactive arthritis was less likely than not aggravated beyond its normal progression by his military service.
The examiner supported his opinion by stating that there was no evidence that Mr. Spieker had any signs or symptoms of reactive arthritis during service or immediately following his separation from service. However, the record contradicts the February 2016 examiner’s statement. As argued by Mr. Spieker, the record indicates that he was receiving a prescription for his reactive arthritis during service and that he had iritis during service, which the examiner acknowledged could be a symptom of reactive arthritis. Neither the examiner nor the Board addressed this evidence.
The Secretary argues that the evidence does not show that Mr. Spieker’s in-service iritis indicates that his reactive arthritis was aggravated beyond its natural progression during service.
The Secretary notes that the examiner explained that an eye condition should be viewed as a temporary flare-up and not a worsening of the condition. However, that assertion was not a finding made by the Board and seems to be contradicted by the record, which reflects that Mr. Spieker is service connected for iritis, thus indicating that it was not a temporary, one-time occurrence in service as argued by the Secretary. See Doty v. United States, 53 F.3d 1244, 1251(Fed. Cir. 1995) (“‘Courts may not accept appellate counsel’s post hoc rationalizations for agency action. It is well established that an agency’s action must be upheld, if at all, on the basis
articulated by the agency itself.'” (quoting Motor Vehicle Mfrs. Ass’n of the United States., Inc., v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983))); see also Evans v. Shinseki,
25 Vet.App. 7, 16 (2011) (explaining that “it is the Board that is required to provide a complete
statement of reasons or bases, and the Secretary cannot make up for its failure to do so”).
Mr. Spieker also argues that the Board erred in finding that the February 2016
examination complied with its August 2015 remand order because the examiner used the wrong
standard in rendering his opinion. In its remand order, the Board stated that the examiner should
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provide an opinion as to whether it is clear and unmistakable that Mr. Spieker’s pre-existing
reactive arthritis was not aggravated beyond its normal progression during his military service.
However, the February 2016 examiner used a “less likely as not” standard in rendering his opinion.
In its decision, the Board acknowledged that the examiner used the wrong standard, but found that the opinion as a whole “reflects by clear and unmistakable evidence” that reactive arthritis was not aggravated by service, again noting the examiner’s statement that the evidence did not show any signs or symptoms of reactive arthritis during service. However, as discussed above, the examiner’s statement regarding the evidence is contradicted by the record.
Additionally, the Court notes that the “clear and unmistakable evidence” standard is an onerous standard. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Horn v. Shinseki, 25 Vet.App. 231, 234 (2012) (stating that clear and unmistakable evidence is of the kind that “cannot be misinterpreted and misunderstood” and is “undebatable”). In this case, the examiner clearly used a much less stringent standard. 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 specifically asking the examiner to render an opinion using the “clear and unmistakable evidence” standard. See Stegall, 11 Vet.App. at 271; 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).
Based on these errors, the Court finds that the February 2016 VA medical opinion is
inadequate and that the Board erred by relying on it. See Barr, 21 Vet.App. at 311. Accordingly,
the Court finds that remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (t1998)
(holding that remand is the appropriate remedy “where the Board has incorrectly applied the law,
failed to provide an adequate statement of reasons or bases for its determinations, or where the
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record is otherwise inadequate”); Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (holding that
remand is appropriate where the Board relied on an inadequate medical examination report).
Given this disposition, the Court will not address Mr. Spieker’s other arguments, which
concern the Board’s reasons or bases and could not result in any remedy greater than a remand.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“[a] narrow decision
preserves for the appellant an opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the Board rule against him
[or her]”). On remand, he is free to submit additional evidence and argument on the remanded
matters, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v.
West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that “[a] remand is
meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38
U.S.C. § 7112 (requiring the Secretary to provide “expeditious treatment” of claims remanded by
the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, that part of the June 23, 2016, Board decision on appeal is VACATED
and the matter is REMANDED for readjudication consistent with this decision.
DATED: February 15, 2018
Copies to:
Caitlin Tweed, Esq.
VA General Counsel (027)

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