Citation Nr: 0001407 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 97-11 685 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for psoriatic arthritis other than of the upper extremities. 2. Entitlement to an increased rating for psoriasis, currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for low back strain, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for residuals of a right fifth finger osteotomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The veteran had active military service from August 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) in part from a May 1996 rating decision of the RO which denied claims for increased ratings for service- connected low back strain, right fifth finger disability, and psoriasis. The veteran also appealed July and October 1996 RO rating decisions which denied service connection for psoriatic arthritis. The veteran's testimony was obtained at a hearing at the RO in December 1997. In May 1998, the hearing officer granted a 30 percent rating for service-connected psoriasis. By a March 1999 decision, service connection was granted for psoriatic arthritis of the upper extremities. Consequently, the service connection claim now before the Board is best characterized as entitlement to service connection for psoriatric arthritis other than in the upper extremities. FINDING OF FACT A link between service-connected psoriasis and the development of psoriatic arthritis in joints other than in the upper extremities is implicit in the medical evidence of record. CONCLUSION OF LAW The claim of service connection for psoriatic arthritis other than in the upper extremities is well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306 (1999). Secondary service connection for a disability is warranted when that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477, 485-86 (1999). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. at 495. The Court has held that evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus, or link, between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). This third element may also be established by the use of statutory presumptions. See 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In the present case, the Board finds that the claim of service connection for psoriatic arthritis in other than the upper extremities is well grounded. In August 1998, a VA examiner indicated that the veteran had complaints of multiple joint pains that occurred especially in areas where he had extensive psoriatic involvement. Psoriatic plaques were specifically noted in various areas including moderate involvement in the knee areas. The overall clinical impression was that intermittent joint pains, especially in the hands and wrists, were very likely related to at least mild inflammatory changes due to psoriatic arthritis. Although the August 1998 examination report does not provide definite information as to which of the veteran's joints is affected by psoriatic arthritis, the examination nevertheless tends to provide a plausible basis for concluding that the veteran likely has psoriatic arthritis in joints other than those of the upper extremities. Other records show complaints of lower extremity pain and impairment, as well as ongoing treatment for already service-connected psoriasis. The veteran has also submitted a copy of an October 30, 1997 newspaper article from the New Haven Register. This article briefly relates the medical opinion of Peter Gott, M.D., to the effect that psoriasis can lead to arthritis. Given the veteran's long history of psoriasis, the recent clinical impression of psoriatic arthritis in various unspecified joints, and the medical opinion of a nexus between the two disorders, as contained in the October 1997 newspaper article, the Board is of the opinion that the claim of service connection for psoriatic arthritis other than in the upper extremities is well grounded. More than a speculative basis is demonstrated. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). ORDER The claim of service connection for psoriatic arthritis other than in the upper extremities is well grounded; to this extent, the appeal is granted. REMAND The Board notes that governing regulations provide that a supplemental statement of the case (SSOC) will be furnished to the veteran when additional pertinent evidence is received after a statement of the case (SOC) has been issued. 38 C.F.R. § 19.31 (1999). Moreover, the appellant has the right to have that additional evidence reviewed by the RO in the first instance unless he waives such consideration in writing. See 38 C.F.R. § 20.1304(c) (1999). In the case on appeal, additional pertinent medical evidence was received in June 1999 from the Social Security Administration (SSA), and more recent VA treatment records were received in July 1999. Although the most recent RO rating decision and SSOC are dated in March 1999, in July 1999, the appeal was transferred to the Board from the RO, without specific consideration of this additional evidence. While some of this recent evidence is duplicative of evidence previously before the RO, most of the records are not. Accordingly, a remand is required. 38 C.F.R. §§ 19.31 and 20.1304(c) (1999). Specifically, this medical evidence shows treatment in 1998 and 1999 for multiple low back, skin, lower extremity, and finger and hand disorders, of undetermined etiologies. These disorders include: psoriatic arthritis; generalized psoriasis of multiple joints; lower extremity ulcers and skin disorders; low back radiculopathy; and complaints of pain and impairment of the fingers, with examination of the veteran's service-connected right finger disorder in April 1999, to include notation that he was unable to make a full fist. See November 14, 1998 private treatment summary, and VA treatment records dated in October and November 1997, and April, May, and June 1999. Treatment records of April 1999 also show possible low back disc disease, with notation that the veteran walks with a limp and uses a cane. Given that such findings appear to be pertinent to each of the disabilities for which the veteran desires increased ratings, and because more definite information is needed as to the exact joints affected by psoriatic arthritis, a remand is required so that the RO may consider this additional evidence and undertake additional evidentiary development as appropriate. As the veteran has not waived RO consideration of the evidence received since the issuance of the most recent SSOC, and because this evidence relates in some way to each of the issues on appeal, a remand is required. In view of the foregoing, this case is hereby REMANDED for the following: 1. The appellant should be contacted and notified of his right to submit evidence, argument, and/or comment with regard to his claims on appeal. The RO should also complete any further evidentiary development deemed necessary, including obtaining copies of any more recent VA treatment records, dated from June 1999 to the present. 2. Thereafter, the veteran should be scheduled for VA examinations to determine the severity of service- connected psoriasis, low back strain, and right finger disability. Applicable rating criteria should be provided to the examiner(s) so that all findings necessary to rate the disabilities at issue may be made. The examiner(s) should review all the evidence of record, including that received since issuance of the March 1999 SSOC. An examination of the veteran's joints should be conducted with a view toward identifying each joint affected by psoriatic arthritis. Each such joint affected by this process should be specifically noted by the examiner. When the veteran's low back is examined, all functional losses, such as might be caused by pain or weakness should be set forth in detail and equated to additional loss in range of motion beyond that demonstrated in the clinical setting. 3. Thereafter, and upon completion of any other necessary development, the RO should re-adjudicate the claims on appeal, to include consideration of the evidence received or submitted since the March 1999 SSOC, and to include consideration of, and citation to, 38 C.F.R. § 3.310 (1999) regarding the claim of service connection for psoriatic arthritis of other than the upper extremities. 4. If any benefit sought is not granted, the veteran and his representative should be issued a SSOC which addresses, among other things, evidence received since the issuance of the March 1999 SSOC, and the application of 38 C.F.R. § 3.310 (1999) to the service connection claim. After the appellant and his representative have been given opportunity to respond to the SSOC, the claims folder should be returned to this Board for further review. No action is required by the appellant until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. MARK F. HALSEY Member, Board of Veterans' Appeals