Citation Nr: 0810502 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-19 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a facial rash, including pseudofolliculitis barbae, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a skin rash, including seborrheic dermatitis and photosensitive dermatitis, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a disability manifested by chest pain, to include as due to an undiagnosed illness. 4. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 5. Entitlement to service connection for a disability manifested by aching shoulder joints, to include as due to an undiagnosed illness. 6. Entitlement to service connection for a disability manifested by shortness of breath, to include as due to an undiagnosed illness. ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from October 1987 to April 1999. The veteran had three periods of continuous service; he received a dishonorable discharge during his final period of service. An October 2002 administrative decision determined that the veteran is eligible for VA benefits only for the period of service from October 5, 1987, to October 4, 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan. The issues before the Board today were remanded in March 2007 for further evidentiary and procedural development. As discussed in more detail below, this was not accomplished; therefore, a remand is necessary. The Board notes that it referred the above claimed disabilities to the RO to be adjudicated as due to an undiagnosed illness in the Introduction of the March 2007 remand. Recently the Court of Appeals for Veterans Claims (Court) held that separate theories in support of a claim for a particular disability are to be adjudicated under one claim. See Robinson v. Mansfield, 21 Vet. App. 545, 550-51 (2008), citing, Bingham v. Principi, 421 F.3d. 1346, 1349 (Fed. Cir. 2005). As such, separate adjudication of the veteran's disabilities under a separate theory of entitlement (in this case, undiagnosed illness under 38 C.F.R. § 3.317) is not warranted. Since it appears that no action has been taken on the Board's March 2007 referral, the Board has recharacterized the issues as above to include the veteran's assertion that his disabilities should be considered as due to an undiagnosed illness. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In its March 2007 remand, the Board instructed the agency of original jurisdiction (AOJ) to supply the veteran with notice in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) with respect to all of his claims on appeal. The Appeals Management Center (AMC) sent the veteran a letter in April 2007 which partially satisfied the elements of notice required by the VCAA. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2007). See also Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The April 2007 letter failed, however, to provide the veteran with first element notice as to what information and evidence is necessary to substantiate a service connection claim. In light of the above circumstances, the Board finds that there has not been substantial compliance with the March 2007 remand directives. As such, a new remand is required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). As discussed in the Introduction, the Board has recharacterized each of the veteran's claimed disabilities to reflect his assertion that he may be entitled to service connection for such disabilities under the provisions of 38 C.F.R. § 3.317 (compensation for certain disabilities due to an undiagnosed illness). As such, the AOJ should ensure that all notice and development necessitated by this theory of entitlement is completed prior to readjudicating the veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter in accordance with with respect to this issues , in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) and Dingess, supra specific to the veteran's claims of service connection for: (1) a facial rash, including pseudofolliculitis barbae, to include as due to an undiagnosed illness; (2) a skin rash, including seborrheic dermatitis and photosensitive dermatitis, to include as due to an undiagnosed illness; (3) a disability manifested by chest pain, to include as due to an undiagnosed illness; (4) headaches, to include as due to an undiagnosed illness; (5) a disability manifested by aching shoulder joints, to include as due to an undiagnosed illness; and (6) a disability manifested by shortness of breath, to include as due to an undiagnosed illness. This letter must advise the veteran of the types of evidence and information needed to substantiate his service connection claims, including the evidence needed to substantiate these claims under 38 C.F.R. § 3.317 (undiagnosed illness). 2. Request that the veteran either (a) submit evidence regarding treatment for his claimed disabilities since service, or (b) submit information sufficient to request such information from the appropriate federal and non-federal facilities and providers. He should be instructed to include the names, addresses, dates of treatment, and release forms, if necessary. 3. After completion of the above, and any other development deemed necessary, readjudicate the veteran's claims of service connection to include as due to an undiagnosed illness. If the benefits sought on appeal remain denied, provide the veteran and his representative, if any, with a supplemental statement of the case. Subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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) (2007).