Citation Nr: 1808933 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 95-09 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for psoriasis, to include as secondary to service-connected major depressive disorder. 2. Entitlement to service connection for psoriatic arthritis, to include as secondary to psoriasis. 3. Entitlement to a disability rating in excess of 50 percent for major depressive disorder. REPRESENTATION Appellant represented by: Harry J. Binder, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to October 1971, and on periods of active duty for training (ADT) and inactive duty training (IDT) dated between October 1973 to September 1986; December 21-22, 1985; December 28-31, 1985; May 17-18, 1986; and May 21-June 2-6, 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Jurisdiction of the case was subsequently transferred to the RO in St. Louis, Missouri. In March 2004, the Veteran testified at a hearing held at the RO before a Veterans Law Judge (VLJ) on the issues of service connection for psoriasis and psoriatic arthritis. In October 2004, notification was sent to the Veteran indicating that a complete hearing transcript of his March 2004 hearing could not be prepared, and that he was entitled to another hearing, if so desired. The following month, the Veteran responded with a request for a new hearing before the Board sitting at the RO. In December 2004, the Board remanded this matter to comply with the Veteran's request for a new hearing. In April 2005, the Veteran testified at a hearing held at the RO before a different VLJ; a transcript of the hearing has been associated with the record. In a May 2015 letter, the Veteran was informed that the VLJ who conducted the second hearing is no longer working at the Board, and he was entitled to another Board hearing, if he wished. In a June 2015 letter, the Veteran indicated he was not interested in an additional Board hearing. Although the Veteran recently indicated he wanted a Board hearing and it does not appear that this request was processed, his claims for service connection are being granted in full in this decision. In September 2012, the Board issued two decisions. In one decision, the Board denied the claims for an evaluation in excess of 20 percent for cervical muscle strain, including rhomboid and latissimus dorsi muscles, since June 2, 1998; an evaluation in excess of 10 percent for thoracic spine strain, from June 2, 1998 through September 25, 2003; an evaluation excess of 20 percent for thoracic spine strain, since September 26, 2003; and reopened and remanded the claims of entitlement to service connection for psoriasis and psoriatic arthritis. In the second decision, the Board granted a 50 percent evaluation for major depressive disorder and remanded the issue of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). A TDIU was granted in a February 2013 rating decision. The Board notes that the claim for a higher rating for major depressive disorder originated from a March 2010 rating decision that granted service connection and assigned a noncompensable rating. As noted, in September 2012, the Board granted a higher rating of 50 percent. Then, an October 2012 rating decision implemented the Board's granted of a 50 percent rating for major depressive disorder. The Veteran then "disagreed" with that 50 percent rating and his claim was processed as an appeal to that rating decision. However, that rating decision, as noted, effectuated the Board's grant of a 50 percent rating. The Board's decision on the 50 percent rating is final absent an appeal to the United States Court of Appeals for Veterans Claims (the Court) or a favorable motion for clear and unmistakable error (CUE); neither of which occurred in this case. Thus, the Veteran's disagreement was actually a new claim for a higher rating. An April 2016 rating decision denied a higher rating for major depressive disorder and a timely notice of disagreement has been received. A supplemental statement of the case was thereafter issued and although it listed the major depressive disorder matter, it was not addressed therein. Thus, as addressed below, the Veteran should be sent a statement of the case. The Board last remanded this case in February 2016. The issue of entitlement to a rating in excess of 50 percent for major depressive disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Psoriasis was initially manifest during a period of ADT. 2. Psoriatic arthritis was initially manifest during a period of ADT. CONCLUSIONS OF LAW 1. Psoriasis was incurred in ADT service. 38 U.S.C. §§ 1101, 101, 106, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. Psoriatic arthritis was incurred in ADT service. 38 U.S.C. §§ 1101, 101, 106, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claims are being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, arthritis will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Service connection may also be granted for disability resulting from disease or injury incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C. §§ 101(24), 106. Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 1106; 38 C.F.R. § 3.6(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. There are several medical opinions regarding when the Veteran's claimed psoriasis and psoriatic arthritis was initially incepted, and as was noted on his April 1987 medical retirement evaluation. In an April 1987 letter, a private provider indicated that the Veteran's psoriasis and psoriatic arthritis were conditions which were normally stress related and these developed between April and July of 1986 and had worsened since. Other supporting letters were received from this provider in May 2000 and March 2008. Another private provider submitted a letter dated in July 2002 and indicated that the onset was during service, but dated the onset in 1983, but that was when the Veteran was not on verified ADT. An October 2012 VA examiner indicated that the Veteran's psoriasis was not caused or aggravated by his service-connected disabilities. However, the examiner gave no rationale to support the opinion. In a November 2012 VA examination, the examiner noted that the Veteran reported that he was initially discharged in 1986, but was reinstated through 1991. Therefore, the examiner determined that the Veteran's psoriasis and psoriatic arthritis were incurred during service, as he was in service in 1986 when the skin disorder was diagnosed. However, it was unclear whether the examiner understood that the Veteran was a civilian employee at that time, and this disease would have to have been incurred during a qualifying period of ADT. As such, the Board remanded this case for an additional VA opinion. The addition opinion was thereafter obtained in April 2016. The examiner opined that the claimed conditions were at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that it is it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current skin psoriasis and psoriatic arthritis conditions were both incurred during a qualifying period of ADT with the National Guard. The examiner noted that the Veteran had multiple primary care visits during the applicable time period which were ultimately diagnosed by a rheumatologist consultation in October 1986 as psoriatic arthritis. In addition, skin lesions were also shown and determined in July 1986 and eventually and definitively in September 1986 to be psoriasis. Therefore, the examiner concluded that it is at least as likely as not that some of the yet-undiagnosed psoriatic skin lesions began and was present during some of the 1986 periods of service. The examiner noted that it could not be stated that the weeks of ADT periods actually caused or aggravated the psoriasis, but they were manifested concurrently during service. An additional addendum was obtained which indicated that the conditions were not secondary to service-connected disabilities. In September 2017, a private physician submitted a letter indicated that he was following the Veteran in his rheumatology clinic. He noted that the Veteran had psoriasis and psoriatic arthritis. The Veteran reported, and as substantiated in the record, that his symptoms started in 1986 with swelling as well as warmth and pain in several joints. The physician indicated that it was feasible that the Veteran already had the undiagnosed psoriatic arthritis back then and as the disease developed, his diagnosis was made later. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the examiners, particularly the last VA examination report, were aware of the Veteran's medical history and furnished analyses. The Board therefore attaches significant probative value to the opinions. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The probative medical evidence establishes that psoriasis and psoriatic arthritis were initially manifest during a period of ADT. As such, service connection is warranted. Since direct service connection is warranted, there is no need to consider secondary service connection. ORDER Entitlement to service connection for psoriasis is granted. Entitlement to service connection for psoriatic arthritis is granted. REMAND As noted in the introductory portion of this decision, the Veteran has submitted a notice of disagreement as to the issue of entitlement to a rating in excess of 50 percent for major depressive disorder. As such, a statement of the case must be issued. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). In addition, VCAA notice should be sent to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice as to the issue of entitlement to a rating in excess of 50 percent for major depressive disorder. 2. The Veteran should be sent a statement of the case as to the issue of entitlement to a rating in excess of 50 percent for major depressive disorder in accordance with 38 U.S.C. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the Veteran perfects the appeal by submitting a timely and adequate substantive appeal on this issue, then the claim should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. §§ 5109B, 7112 (West 2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs