Citation Nr: 0003644 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-04 744A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether a substantive appeal as to the denial of an increased evaluation for psoriasis and service connection for right and left knee disorders and a right ankle disorder was timely filed. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a right ankle disorder. 5. Entitlement to a rating in excess of 50 percent for psoriasis. REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from November 1969 to June 1974. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A review of the record reveals that the RO denied service connection for knee disorders and a right ankle disorder and for a rating in excess of 50 percent for psoriasis in December 1994. In light of the procedural history and due to the favorable disposition reached in this decision regarding the timeliness of the filing of a substantive appeal as to the 1994 decision, the following claims are deemed to have been perfected and are currently before the Board of Veterans' Appeals (Board): entitlement to service connection for right and left knee disorders; entitlement to service connection for a right ankle disorder; and entitlement to a rating in excess of 50 percent for psoriasis. These issues will be addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. In December 1994, the RO denied service connection for knee disorders and a right ankle disorder and for a rating in excess of 50 percent for psoriasis. 2. There is clear evidence that the notice of the 1994 rating decision and the corresponding Statement of the Case (SOC) were not sent to the most recent address as provided by the appellant. 3. Clear evidence shows administrative irregularity in the mailing of the SOC. Correspondence sufficient to perfect the issues on appeal was submitted within a requisite time period. 4. There is competent medical evidence of record linking current right knee and right ankle disability with the period of service; there remains outstanding medical evidence that potentially makes the claim for service connection for a left knee disability capable of substantiation. 5. The record contains evidentiary assertions of increased disability due to the service connected skin disability. CONCLUSIONS OF LAW 1. A substantive appeal or response to the SOC pertaining to the December 1994 rating decision was timely filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.302(a) (1999). 2. The claims for service connection for right and left knee disabilities, a right ankle disability and an increased rating for a skin disability are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Criteria Applicable law provides that an appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1999). The NOD shall be filed within one year from the date of mailing of notice of the result of initial review or determination. Such notice, and appeals, must be in writing and be filed with the agency of original jurisdiction which entered the determination. Such notice, and appeals, must be in writing and be filed with the agency of original jurisdiction which entered the determination with which disagreement is expressed. 38 U.S.C.A. § 7105(b)(1) (West 1991); 38 C.F.R. § 20.201 (1999). Thereafter, copies of the SOC will be submitted to the claimant and his representative. The date of the SOC itself will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. A substantive appeal shall be filed within 60 days from the date of mailing of the SOC, or within the remainder of the 1- year period from the date of mailing of the notification of the initial review and determination being appealed, whichever period ends later. The appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the SOC, and the benefits sought on appeal must be clearly identified. 38 U.S.C.A. § 7105(b)(1) (West 1991); 38 C.F.R. § 20.2302(a) (1999). The agency of original jurisdiction may close the case for failure to respond after receipt of the SOC, but questions as to timeliness or adequacy of response shall be determined by the Board. 38 U.S.C.A. § 7105(b)(3) (West 1991). Notice for VA purposes means written notice sent to a claimant's last address of record. 38 C.F.R. § 3.1(q) (1999). The United States Court of Appeals for Veterans Claims (Court) has held that the law presumes the regularity of the administrative process "in the absence of clear evidence to the contrary." See YT v. Brown, 9 Vet. App. 195, 199 (1996). Factual Background The record reflects that in December 1994 the RO issued a rating decision which denied service connection for knee disorders and a right ankle disorder and for a rating in excess of 50 percent for psoriasis in December 1994. The veteran submitted a statement accepted as the NOD in September 1995 and provided a home address in Issaquah, Washington, which had not previously been of record. A February 1996 notice from the RO to the veteran regarding a physical examination was mailed to the Washington state address. The Board notes, however, that correspondence (the SOC) dated in June 1996 notifying the veteran of this decision was sent to an address in Scottsdale, Arizona. While the record does not reflect that the June 1996 correspondence was returned as undeliverable, the claims file reflects that additional RO correspondence to the veteran dated in June 1996 was returned with a notation on the envelope that the veteran was "no longer at this address." The substantive appeal in question was added to the claims file in November 1996. That document includes reference to the fact that the SOC was incorrectly addressed. Statements by the veteran and by his private attorney on his behalf in the claims file assert that the veteran's substantive appeal was not timely filed in that the veteran did not receive the SOC from the RO in a timely manner. (For an example, see the attorney's August 1997 statement.) Analysis Based upon the evidence of record, the Board finds that clear evidence shows administrative irregularity in the mailing of the SOC. The Board notes that even though the veteran had provided a new home address at the time he filed his NOD, the SOC was not sent there. This is sufficient evidence to rebut the presumption of administrative regularity. Although the record does not reflect that the June 1996 SOC was returned to the RO as undeliverable, other correspondence to the veteran from the RO around the same time was. The Board finds that there is reasonable evidence in support of the veteran's claim that he did not submit a timely substantive appeal due to the fact that he did not receive the SOC in a timely manner. Therefore, the Board finds correspondence submitted within a requisite time period was sufficient to perfect the issues of entitlement to an increased rating for psoriasis and entitlement to service connection for knee disorders and a right ankle disorder. ORDER A substantive appeal or response to the SOC pertaining to the December 1994 rating decision was timely filed. The appeal is granted. REMAND It is the Board's conclusion that the evidence of record, particularly the report from private physician in 1997, supports a finding that the claims for service connection for the right knee and right ankle are well grounded. Likewise, the evidentiary assertions of increased disability make the claim for an increased rating well grounded. 38 U.S.C.A. § 5107(a) (West 1991). For reasons discussed below, the Board finds that further development of the record is required. As this development may potentially locate evidence bearing on the claim for service connection for the left knee disability, that claim remains capable of substantiation and thus well grounded on a preliminary basis. The veteran's psoriasis is evaluated as 50 percent disabling which is the maximum schedular rating available under the regulations. 38 C.F.R. § 4.119, Diagnostic Code 7816 (1999). However, the "note" attached to these regulations states that "[t]he most repugnant conditions may be submitted for central office rating with several unretouched photographs." In such cases, a 50 percent evaluation may be increased to 80 percent if there is marked discoloration, color contrast, or the like in addition to tissue loss and cicatrization. The most repugnant, disfiguring conditions, including scars and diseases of the skin, may be submitted for central office rating, with several unretouched photographs. 38 C.F.R. § 4.118, Code 7800 and Note. The most recent examination of the veteran's skin was in May 1998. At that time, there were large plaques of thickened, erythematous, scaly psoriasis on the legs, elbows, and scalp, and small guttate-type lesions on the thighs, trunk, arms, posterior surface of the ears, and external auditory canals. Photographs reflecting these findings are included in the report. The examiner commented that while the psoriatic activity was in a relatively less severe state, the veteran still suffered from constant itching and tenderness, irritability, and loss of concentration. He also noted that most of the topical treatment were messy and smelly, and the veteran was concerned that people who noticed exposed lesions might find it repugnant. When there were lesions on his feet, fissures often appeared on the soles, making it difficult to walk. The Board's review of the record shows that the RO considered 38 C.F.R. § 4.119, DC 7816 (1999) in denying the veteran's claim. (See the June 1996 SOC.) It was noted that this was the maximum rating under that code. While the RO addressed also the provisions of 38 C.F.R. § 3.321(b) governing extraschedular evaluations as it pertains to the skin disability, it does not appear, however, that the RO expressly addressed the "note" as summarized above as to whether the veteran's skin condition warranted consideration by the central office. The Board concludes that on the facts of this case, due process requires that the RO address the provisions of the "note" under DC 7800, and provide its reasoning for submitting or not submitting the matter for a central office rating. Turning to the issues of entitlement to service connection (knees and right ankle), it is contended that each of these disorders is related to an inservice injury which occurred in 1971. A review of the service medical records (SMRs) shows a right knee injury in March 1971. There is no mention of injury to any other part of the anatomy. The diagnosis was contusion with possible internal derangement. X-rays apparently taken at a British Military Hospital in Singapore were reported not to show bone injury. The veteran was treated with physical therapy and by June 1971, right knee findings were normal. Subsequently dated records are negative for additional right knee treatment or treatment for left knee or right ankle complaints. Separation examination was negative for knee or ankle complaints or diagnoses. In 1994, numerous lay statements were added to the claims file. Each statement relates knowledge of postservice back and knee problems and pain dating to the veteran's return from Vietnam. Postservice records apparently are negative for orthopedic complaints until VA examination in September 1994. At that time, the veteran gave a history of falling on ship and injuring his tailbone, knees, and his right ankle. X-rays of the knees were interpreted as "unremarkable" overall, and specifically as disclosing "no significant" soft tissue or bone changes, no evidence of recent injury, and the joint spaces were unremarkable. X-ray of the right ankle showed evidence of old post-traumatic changes. Subsequently dated records include a private physician's August 1997 examination report. The examiner noted that the veteran's claims file was reviewed to help evaluate the veteran's condition. X-rays revealed a 0.5 cm loose body in the right knee joint and degenerative changes in the area of the intra-condylar eminence. The right knee also exhibited limited range of motion (ROM) testing and tenderness over the medial compartment of the knee. There was marked pain on patellofemoral compression associated with patellofemoral crepitus. Examination of the left knee revealed no ligamentous instability and/or meniscal signs, moderate patellofemoral crepitus was present but not associated with pain. Examination of the right ankle revealed no evidence of swelling, but there was slight limitation of ankle dorsiflexion and plantar flexion. The examiner's diagnostic impressions included degenerative arthritis, patellofemoral compression syndrome, loose body of the right knee; chondromalacia of the patella of the left knee, asymptomatic; chronic pain, limitation of motion and stiffness of the right ankle with evidence of post-traumatic changes. It was the examiner's opinion after the examination and review of the claims folder that the veteran's right knee and right ankle conditions were related to the inservice injury. Upon additional VA orthopedic examination in May 1998, X-ray of the right knee showed mild degenerative changes and minimal marginal spur formation. X-ray of the left knee showed mild degenerative changes and minimal marginal spur formation. X-ray of the right ankle showed no definite bone or joint abnormality. It is the opinion of the Board that additional medical information is needed concerning the nature and extent of bilateral knee and right ankle conditions before a final determination is made concerning the veteran's claim for service connection for these disabilities. Specifically, the Board believes that the actual X-ray films taken over the years, inservice and postservice, should be obtained and reviewed by the appropriate specialist for an opinion as to whether current disorders of the knees or right ankle, if existent, are related to an inservice injury in 1971. Hence, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should obtain all actual X-ray films taken of the veteran's knees and right ankle, to include those made during service, if available, and postservice. Specifically, X-ray films of the right knee made during service at the British Military Hospital in Singapore, if available, and X-ray films of the knees and right ankle referred to upon VA examinations in 1994 and 1998 and those made upon private evaluation in 1997 should be obtained for inclusion into the record. 3. Thereafter, these films should be studied by an appropriate specialist to determine the nature, extent, and etiology of any disorders of the knees or right ankle found. Specifically, the specialist is requested to provide an opinion as to the degree of medical probability that any disorders currently found are related to the inservice injury from 1971. The claims folder and this Remand must be made available to the examiner for review in conjunction with his/her review of the films. If the physician believes that a further clinical examination of the veteran is necessary in order to respond to this question, the examination should be arranged. The physician should provide a rationale for any opinion offered and should address the significance or lack of significance of any radiographic findings taken over the years as they relate to the question of whether a current disability is related to service. The veteran is expressly advised that it is vital that he cooperates with any request that he appears for the VA examination as the examination may produce findings and medical opinions that are critical to his claim. Moreover, if he fails to appear, the lack of such evidence may be highly detrimental to his claim, and by regulation the claim would be reviewed on the evidence of record. 38 C.F.R. § 3.655 (1999); Connolly v. Derwinski, 1 Vet. App. 566 (1991). 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Once the record is complete, the RO should again the review the issues on appeal. That review should expressly address the "note" to Code 7800 with regard to the claim for an increased rating for a skin disability. If the determinations remain unfavorable, he and his accredited representative should be given a supplemental statement of the case and allowed sufficient time for a response. Thereafter, the claim should be returned to the Board for further consideration. No action is required of the veteran until he is contacted by the RO. The purpose of this REMAND is to ensure due process and to obtain additional clarifying medical evidence. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Richard B. Frank Member, Board of Veterans' Appeals