Citation Nr: 1324275 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-11 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for psoriasis. 3. Entitlement to service connection for psoriatic arthritis, to include as secondary to psoriasis. 4. Entitlement to service connection for a gastrointestinal disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to January 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). The case is now under the jurisdiction of the Portland, Oregon RO. A Board hearing was held before the undersigned in March 2011. A transcript of this hearing is of record. At the hearing, the Veteran was granted a 30-day abeyance period for the submission of additional evidence to support his claim. No additional evidence was received during that time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Before the Board can adjudicate the claims on the merits, additional development is required. I. VA Examination In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. A. Psoriasis The Veteran contends that he has psoriasis that began during service or is the result of vaccinations and inoculations he received during service. VA treatment records during the appeal period show a diagnosis of psoriasis. Thus, there is competent evidence of a current disability, which satisfies the first McLendon element. There is also an indication that current psoriasis may be related to service, but insufficient competent medical evidence on file for VA to make a decision on the claim, thereby satisfying the remaining McLendon elements and triggering VA's duty to obtain an examination. For example, skin complaints are shown during service. In December 1973, the Veteran had a red rash over his entire body for two days. The impression at that time was Rubella. In June 1974, the Veteran had a rash on both arms and was given hydrocortisone cream. Private treatment records from shortly after the Veteran's discharge also appear to reflect skin problems. While the treatment note is hard to read, it appears that in August 1975 the Veteran had a reddish rash on the head of his penis which resembled moniliasis. In April 1976, he had a rash on the hairline of the forehead and right knee. The treatment note appears to reference psoriasis. More recently, an August 2005 VA rheumatology note indicates that historically the onset of the Veteran's psoriasis was in the 1970s. Hence, on remand a VA examination should be conducted and an etiological opinion obtained regarding current psoriasis. B. Gastrointestinal Disability The Veteran contends that he has a gastrointestinal disability that began during his military service. VA treatment records during the appeal period show a diagnosis of esophageal spasm. Thus, there is competent evidence of a current disability, which satisfies the first McLendon element. There is also an indication that a current gastrointestinal disability may be related to service, but insufficient competent medical evidence on file for VA to make a decision on the claim, thereby satisfying the remaining McLendon elements and triggering VA's duty to obtain an examination. For example, service treatment records reflect assessments of gastroenteritis in July 1974, nonspecific gastroenteritis in September 1974, and gastritis in September 1974. According to the Veteran, he was diagnosed with a gastric ulcer at discharge; however, service treatment records show a normal evaluation at discharge. See Substantive Appeal received from the Veteran in April 2009. The Veteran indicates that he has had gastrointestinal problems since service. Board Hearing Tr. at 29; see also Substantive Appeal received from the Veteran in April 2009. Hence, on remand a VA examination should be conducted and an etiological opinion obtained regarding any current gastrointestinal disability. II. PTSD Stressor Development In connection with the Veteran's claim for entitlement to service connection for PTSD he has identified several traumatic events occurring during service. These events reportedly occurred while the Veteran was stationed aboard the U.S.S. Turner Joy, and include: (1) witnessing other personnel picking up pieces of jets that crashed and fishing pilots out of the water, (2) the ship being involved in gunfire missions to support combat operations ashore, (3) small craft coming after the ship and being destroyed by the ship, and (4) verbal and physical abuse. Board Hearing Tr. at 4-13; see also Substantive Appeal received from the Veteran in April 2009. The Veteran's personnel records reflect that he reported aboard the Turner Joy in March 1974. Steps should be undertaken to verify whether that ship was off the coast of Vietnam, engaged in combat operations, or engaged in pilot recovery during the Veteran's period aboard. III. VA Treatment Records Ongoing VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The file currently contains no VA treatment records dated after August 2007. IV. VCAA Notice The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. In this case, the Veteran has not received proper notice regarding how to substantiate a claim for service connection for PTSD based upon a personal assault or how to substantiate a claim for service connection on a secondary basis. See 38 C.F.R. §§ 3.304(f)(5); 3.310 (2012). This should be remedied on remand. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran corrective VCAA notice that includes an explanation as to the information or evidence needed to establish a claim for service connection on a secondary basis and a claim for service connection for PTSD based on personal assault. 2. Verify from the appropriate source whether the U.S.S. Turner Joy was off the coast of Vietnam or engaged in combat operations at any time while the Veteran was aboard (March 7, 1974 to January 23, 1975). 3. Request that the Joint Services Records Research Center or other appropriate entity attempt to verify the Veteran's assertion that the crew of the Turner Joy participated in pilot recovery during his period aboard (March 7, 1974 to January 23, 1975). 4. Obtain all relevant VA treatment records dating since August 2007 and associate them with the claims file. 5. After the development requested in items (1) through (4) is completed, schedule the Veteran for an examination to determine the nature and etiology of his claimed psoriasis. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should specifically identify any skin disorder present. For each skin disorder identified, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such skin disorder had its onset in, or is otherwise related to the Veteran's active service, to include receiving vaccinations and inoculations. If psoriasis is not present on examination, the examiner should offer an opinion as to whether it is at least as likely as not that the psoriasis shown during the appeal period, although not on examination presently, had its onset in, or was otherwise related to the Veteran's active service, to include receiving vaccinations and inoculations. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. After the development requested in items (1) through (4) is completed, schedule the Veteran for an examination to determine the nature and etiology of his claimed gastrointestinal disability. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should specifically identify any gastrointestinal disability present. For each gastrointestinal disability identified, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such gastrointestinal disability had its onset in, or is otherwise related to the Veteran's active service. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 7. Undertake any additional development deemed necessary. For example, if evidence is developed that indicates further VA examination is warranted such should be scheduled. 8. Readjudicate the issues on appeal taking into consideration the evidence received since the last adjudication of these claims. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 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. 2012). _________________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).