Citation Nr: 0913969 Decision Date: 04/15/09 Archive Date: 04/24/09 DOCKET NO. 06-25 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date earlier than November 15, 2002, for the grant of service connection for psoriatic arthritis, right shoulder. 2. Entitlement to an effective date earlier than November 15, 2002, for the grant of service connection for psoriatic arthritis, left shoulder. 3. Entitlement to an effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, right wrist. 4. Entitlement to an effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, left wrist. 5. Entitlement to an effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, right ankle. 6. Entitlement to an effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, left ankle. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 8. Entitlement to a rating in excess of 10 percent for psoriasis, claimed as a skin condition. 9. Entitlement to a rating in excess of 10 percent for psoriatic arthritis, right hand. 10. Entitlement to a rating in excess of 10 percent for psoriatic arthritis, left hand. 11. Entitlement to a rating in excess of 20 percent for degenerative disc disease, T12 with disc bulge at L4-5; psoriatic thoracic and lumbar spondyloarthropathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1991 to August 1998. These matters come before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issues of increased ratings for psoriasis, psoriatic arthritis of the right and left hands, and degenerative disc disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. With respect to his claim for TDIU, the Board finds that this issue is inextricably intertwined with his increased rating claims for psoriasis, psoriatic arthritis of the right and left hands, and degenerative disc disease. Therefore, the issue will be held in abeyance pending completion of the development discussed in the REMAND below. See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991). It appears that the Veteran, in a February 2009 statement, may additionally be raising a new and material claim for entitlement to service connection for posttraumatic stress disorder. As this issue has not yet been adjudicated by the RO, it is referred to the RO for further consideration. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for arthritis, on November 30, 1998, within one year after his separation from active service. 2. Symptoms of right and left shoulder psoriatic arthritis were first noted on November 15, 2002. 3. Symptoms of right and left wrist psoriatic arthritis were first noted on February 9, 1999. 4. Symptoms of right and left ankle psoriatic arthritis were first noted on February 9, 1999. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than November 15, 2002, for the grant of service connection for psoriatic arthritis, right shoulder, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (as amended), 3.400 (2008). 2. The criteria for an effective date earlier than November 15, 2002, for the grant of service connection for psoriatic arthritis, left shoulder, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (as amended), 3.400 (2008). 3. The criteria for an effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, right wrist, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (as amended), 3.400 (2008). 4. The criteria for an effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, left wrist, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (as amended), 3.400 (2008). 5. The criteria for an effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, right ankle, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (as amended), 3.400 (2008). 6. The criteria for an effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, left ankle, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (as amended), 3.400 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. The effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b) (2008). Regarding presumptive service connection under 38 C.F.R. §§ 3.307, 3.308, 3.309, the effective date is the date entitlement arose if a claim is received within one year after separation from active duty; otherwise, it is the date of receipt of a claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(ii). A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2008). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2008); Norris v. West, 12 Vet. App. 413, 421 (1999). The Veteran filed a claim for service connection for arthritis, on November 30, 1998, within one year after his separation from active service. Where a claim has been filed within one year after separation from service, the effective date of service connection is the day following separation from active service or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b). Right and Left Shoulders The record, including service treatment records, does not reflect complaints or treatment of right or left shoulder psoriatic arthritis until a November 15, 2002, VA outpatient treatment visit. Upon examination, tenderness was noted when he raised his shoulders. He was diagnosed with possible psoriatic arthritis. Although the Veteran raised claims for his shoulders within 1 year following his separation from active service, entitlement for these disabilities did not arise at any time prior to November 15, 2002. Therefore, the effective dates of November 15, 2002, remain appropriate here. Right and Left Wrists; Right and Left Ankles The record, including service treatment records, does not reflect complaints or treatment of right or left, wrist or ankle, psoriatic arthritis until a February 9, 1999, VA examination. A February 1999 VA examination report noted complaints of pain in his wrists and ankles. Upon examination however, full range of motion was noted for both his wrists and ankles. X-rays of his wrists and ankles were negative for arthritis. Regardless, the RO found that his complaints of pain were sufficient to show entitlement for these disabilities at that time. Although the Veteran raised claims, for his wrists and ankles within 1 year following his separation from active service, entitlement for these disabilities did not arise at any time prior to February 9, 1999. Therefore, the effective dates remain appropriate here. With respect to all earlier effective date claims, the Veteran has been granted effective dates as of the date entitlement arose. An earlier effective date, for any of these disabilities, is not warranted because the standard is the "day following separation from active service or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b). As already explained, there is no demonstration that entitlement arose at any time prior to November 15, 2002, for his shoulders, or any time prior to February 9, 1999, for his wrists or ankles. Further, because the evidence of record does not demonstrate a diagnosis of psoriatic arthritis of the Veteran's shoulders, wrists, or ankles, prior to November 15, 2002, earlier effective dates based on presumptive service connection are not warranted, for any of these disabilities, under 38 C.F.R. § 3.400(b)(2)(ii). Therefore, the effective dates remain appropriate here. As the preponderance of the evidence is against the claims for earlier effective dates of service connection for his shoulders, wrists, and ankles, the benefit-of-the-doubt rule does not apply, and the claims are denied Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended), 3.326(a) (2008). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Veteran's claims arise from his disagreement with effective dates assigned following the grant of compensable ratings. Courts have held that once a claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, the RO associated the Veteran's VA treatment records with the claims file. Further, he was afforded VA examinations with regard to the issues on appeal in February 1999, June 2004, and August 2004. Significantly, there is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An effective date earlier than November 15, 2002, for the grant of service connection for psoriatic arthritis, right shoulder, is denied. An effective date earlier than November 15, 2002, for the grant of service connection for psoriatic arthritis, left shoulder, is denied. An effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, right wrist, is denied. An effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, left wrist, is denied. An effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, right ankle, is denied. An effective date earlier than February 9, 1999, for the grant of service connection for psoriatic arthritis, left ankle, is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended) and 3.326(a) (2008). The Veteran indicated in a February 2009 informal hearing presentation that his psoriasis, degenerative disc disease, and psoriatic arthritis of his right and left hands, had worsened in severity since his last VA examinations in June and August 2004. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, VA's General Counsel has indicated that a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). Under these circumstances, he should be afforded a VA examination for the purpose of determining the current severity of the service-connected disabilities on appeal. Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following actions: 1. Obtain VA outpatient treatment records from the Shreveport VAMC for the period from May 2006 to the present. 2. The Veteran should be afforded an examination to determine the current severity of his psoriasis, degenerative disc disease of the thoracic and lumbar spine, and psoriatic arthritis of the right and left hands. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. 3. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs