Citation Nr: 0000072 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 96-05 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for psoriasis. 2. Entitlement to an initial disability rating in excess of 20 percent for psoriatic arthritis. 3. Entitlement to service connection for temporomandibular joint dysfunction, claimed as secondary to service connected disabilities. 4. Entitlement to service connection for a fatigue disorder, claimed as secondary to service connected disabilities. 5. Entitlement to service connection for depression, claimed as secondary to service connected disabilities. 6. Entitlement to service connection for carpal tunnel syndrome, claimed as secondary to service connected disabilities. 7. Entitlement to service connection for periodontal disease, claimed as secondary to service connected disabilities. 8. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.29, based on hospitalization from September 8, 1989, to October 19, 1989. 9. Entitlement to a total evaluation based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from July 1957 to July 1961, and from September 1961 to September 1967. This appeal arises from rating decisions of the Department of Veterans Affairs (VA), regional offices in Houston, Texas (April 1993), and Atlanta, Georgia (August 1994). The claims folder was subsequently transferred to the Montgomery, Alabama, regional office (RO). FINDINGS OF FACT 1. The objective evidence does not demonstrate that the veteran currently has carpal tunnel syndrome. 2. The veteran has not met the initial burden of presenting evidence to justify a belief by a fair and impartial individual that his claim for service connection for carpal tunnel syndrome, claimed as being due to his service connected disabilities, is well grounded. 3. Medical evidence of record establishes that the veteran's temporomandibular joint dysfunction, depression, and geographic tongue are secondary to his service connected psoriasis and/or psoriatic arthritis and their treatment. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well grounded claim of service connection for carpal tunnel syndrome, claimed as being proximately due to or the result of a service-connected disability. 38 U.S.C.A § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1998). 2. Temporomandibular joint dysfunction, depression, and geographic tongue are proximately due to or the result of a service connected disability. 38 C.F.R. § 3.310(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Carpal Tunnel Syndrome The veteran contends that his service connected psoriasis and/or psoriatic arthritis has resulted in carpal tunnel syndrome. He contends that he is entitled to service connection on a secondary basis for that disorder. Service connection may be established for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1998). The threshold question to be answered is whether the veteran has presented evidence of a well-grounded claim, that is, one which is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim has been defined as a "plausible claim, one that is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In short, VA is not required to adjudicate a claim until the veteran has met his initial burden of submitting evidence that his claim is well-grounded. "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well-grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim for service connection, this means that the evidence presented must, in some fashion link the claimed disability to a period of military service or to an already service connected disability. See 38 § U.S.C.A. § 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1998); Tirpak v. Derwinski and Grottveit v. Brown, 5 Vet. App. 91 (1993). There must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has carefully reviewed the evidentiary record with respect to the issue of service connection for carpal tunnel syndrome, claimed as a result of his service connected disabilities. In the final analysis, as will be explained below, the veteran's claim is not well grounded. VA examinations in 1990, 1994, and 1995 have not noted the presence of carpal tunnel syndrome. The Board has considered the statements of the veteran to the effect that he has carpal tunnel syndrome which he relates to his service connected psoriatic arthritis. However, the veteran's lay testimony alone is not competent evidence to support a finding on a medical question requiring special experience or special knowledge. His statements as to medical causation are not competent evidence that would render his claims well- grounded. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The medical evidence in this case does not provide a basis upon which to conclude that the veteran currently has carpal tunnel syndrome. Based upon the foregoing, the Board concludes that the veteran has failed to meet his initial burden of presenting evidence that his claim for secondary service connection for carpal tunnel syndrome is plausible or otherwise well-grounded. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Under these circumstances, that claim is denied. Edenfield v. Brown, 8 Vet. App. 384 (1995) (en banc). Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). Temporomandibular Joint Dysfunction, Depression, and Geographic Tongue The veteran contends his service-connected psoriatic arthritis and/or psoriasis has led to temporomandibular joint dysfunction, depression, and geographic tongue. Disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (1998). A VA dental examination was conducted in October 1995. The examiner identified mild temporomandibular joint dysfunction, right side, which he diagnosed as secondary to psoriatic arthritis. Geographic tongue was also noted. The VA general medical examination report diagnosed the geographic tongue with ulceration as secondary to seborrheic arthritis and its treatment. VA psychiatric examination in July 1998 diagnosed dysthymic disorder, which was noted to be a psychiatric entity in itself, with most probable etiology being the service connected chronic illness which increased in severity and was poorly amenable to treatment. Review of the record indicates that the veteran has temporomandibular joint dysfunction, geographic tongue, and depression which have been medically associated with his service connected psoriatic arthritis and/or psoriasis. Thus, the Board finds that the veteran is entitled to service connection for temporomandibular joint dysfunction, geographic tongue, and depression as secondary to his service-connected disabilities. 38 C.F.R. § 3.310 (1998). ORDER Service connection for carpal tunnel syndrome, claimed as secondary to service connected disabilities, is denied. Service connection for temporomandibular joint dysfunction, depression, and geographic tongue, as secondary to service connected disabilities, is granted. REMAND In light of the above grant of service connection for temporomandibular joint dysfunction, depression, and geographic tongue, the RO should reconsider the evaluations of the service connected psoriasis and psoriatic arthritis. The RO must determine whether the newly service connected disabilities should be assigned separate evaluations or be rated as part of the psoriatic arthritis or psoriasis. In this regard, the RO should consider whether separate or staged ratings are appropriate since the veteran originally disagreed with the initial evaluations of these disabilities. See Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate, or staged, ratings can be assigned for separate periods of time based on the facts found). The RO should also readjudicate the veteran's claim for a total disability evaluation based on individual unemployability once the other ratings have been assigned. Additionally, the Board notes that the veteran has claimed service connection for "fatigue" as secondary to his service connected disabilities. Private medical records dated in October 1996 identified the veteran as having sleep apnea. The private physician noted that the veteran had a long-term history of psoriatic arthritis and leg-kicking episodes which appeared to prevent his sleep onset. It is unclear from the record as it now stands whether the veteran has a chronic sleep disability which may be related to his service connected psoriatic arthritis. The RO should clarify this by obtaining a medical opinion on this point, either from the veteran's physicians at the Sleep Disorders Center at USA Knollwood Park Hospital, or from a VA physician who has reviewed the record. The veteran has also claimed entitlement to a temporary total evaluation under 38 C.F.R. § 4.29, based on a VA hospitalization from September 8, 1989, to October 19, 1989. The record contains only a one-page discharge summary from that hospitalization, which indicates that the veteran did receive some treatment for psoriasis. The Board is of the opinion that the entire hospitalization record is necessary in order to properly evaluate this issue. VA has a duty to assist the veteran in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1998). In view of the foregoing, the case is remanded to the RO for the following: 1. The RO must obtain and associate with the claims folder the entire hospitalization record pertaining to the veteran's treatment from September 8 through October 19, 1989, from the VA Medical Center in Houston, Texas. 2. The RO must obtain an opinion as to whether the veteran has a chronic sleep disorder, and if so, whether it is proximately due to, the result of, or aggravated by his service connected psoriatic arthritis and/or psoriasis. In this regard, the RO may wish to contact the physicians at the Sleep Disorders Center at USA Knollwood Park Hospital who provided the October 1996 report of record, or obtain an opinion from a VA physician who has reviewed the record. If deemed necessary, the veteran should be scheduled for an examination by a VA physician. Regardless, of how obtained, the physician's report should include complete rationale for the conclusions reached. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that the foregoing development actions have been conducted and completed in full. If an examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1998) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. Following completion of the above, the RO should review the veteran's claims with regard to the additional evidence obtained. The RO should specifically reconsider the evaluations of the service connected psoriasis and psoriatic arthritis, and determine whether the newly service connected disabilities (temporomandibular joint dysfunction, depression, and geographic tongue) should be assigned separate evaluations or be rated as part of the psoriatic arthritis or psoriasis. The RO should address these ratings with consideration of Fenderson, supra. The RO should also readjudicate the veteran's claim for a total disability evaluation based on individual unemployability once the other ratings have been assigned. Following the above, a supplemental statement of the case should be furnished to the veteran and his representative. They should be given a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. 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). 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. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals