Citation Nr: 18158158 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-15 573 DATE: December 14, 2018 ORDER New and material evidence has not been received to reopen a claim for entitlement to service connection for psoriasis and seborrheic dermatitis, to include as secondary to environmental exposures in the Persian Gulf or as due to an undiagnosed illness. The appeal is denied. REMANDED Whether new and material evidence has been received to reopen a claim for entitlement to service connection for chronic fatigue, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for muscle and joint pain, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for adjustment disorder with mixed emotional features and depressed mood, to include as a manifestation of an undiagnosed illness or a chronic multi-symptoms illness, is remanded. Entitlement to service connection for respiratory disorders, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. Entitlement to service connection for sleep apnea, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. Entitlement to service connection for sleep disturbances, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. FINDINGS OF FACT 1. In a September 2010 rating decision, service connection for psoriasis and seborrheic dermatitis was denied. The Veteran did not perfect an appeal from this denial, nor was new and material evidence submitted received within one year. 2. Evidence received since the September 2010 rating decision is cumulative of evidence previously considered and fails to raise a reasonable possibility of substantiating the claims of entitlement to service connection for psoriasis and seborrheic dermatitis. CONCLUSIONS OF LAW 1. The September 2010 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 2. Evidence received since the September 2010 rating decision is not new and material to the issue of entitlement to service connection for psoriasis and seborrheic dermatitis, and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 through December 1992. The Board notes that the April 2015 Statement of the Case (SOC) addressed the issue of an increased rating for service-connected posttraumatic stress disorder (PTSD). The Veteran wrote on his May 2015 substantive appeal that he wished to withdraw his claim for PTSD, and the Regional Office (RO) properly closed the claim. Accordingly, the issue of entitlement to an increased rating for PTSD was properly withdrawn prior to certification to the Board, and the Board does not have jurisdiction over this claim. In the September 2013 rating forming the basis of the present appeal, among other things, the issues of entitlement to service connection for undiagnosed gulf war illness and entitlement to service connection for fatigue were denied. The Veteran submitted a timely notice of disagreement (NOD) disagreeing with the handling of his claim for “Gulf War Illness.” He included a statement asserting that the conditions and symptoms he experienced related to his undiagnosed Gulf War illness were PTSD (for which service connection has been granted), cognitive problems, combat stress/ psychological factors, anxiety, and psychiatric disorders. The RO interpreted the NOD as an appeal for entitlement to an increased rating for service-connected PTSD and entitlement to service connection for psoriasis and seborrheic dermatitis. As such, no other issues were addressed in the April 2015 Statement of the Case (SOC). However, concurrent with the SOC in April 2015, the RO issued a notice letter stating that the claim for undiagnosed chronic multi symptom illness including the conditions of chronic fatigue, muscle and joint pain, skin conditions, psychiatric issues (feelings of worthlessness, confusion, inability to maintain focus on tasks, and short term memory impairment), respiratory disorders and sleep apnea, and sleep disturbances would be addressed with his initial Notice of Disagreement. Accordingly, the Veteran has been led to believe by the RO that the issues of entitlement to service connection for undiagnosed chronic multi symptom illness including the conditions of chronic fatigue, muscle and joint pain, skin conditions, psychiatric issues (feelings of worthlessness, confusion, inability to maintain focus on tasks, and short term memory impairment), respiratory disorders and sleep apnea, and sleep disturbances are on appeal, and they will be addressed in the REMAND section below. The issue of entitlement to service connection for muscle and joint pain was denied in a January 2002 rating decision, and the issue of entitlement to service connection for fatigue was last denied in a September 2010 rating decision. The Veteran neither perfected an appeal nor submitted new and material evidence within one year of these rating decisions, and they became final. Accordingly, the issues have been characterized as they appear on the title page. As for the issue of entitlement to service connection for psychiatric issues (feelings of worthlessness, confusion, inability to maintain focus on tasks, and short term memory impairment), the Board notes that the RO has previously denied claims for entitlement to service connection for a nervous condition (claimed as concentration and memory problems) diagnosed as an adjustment disorder with mixed emotional features (May 1999), and adjustment disorder claimed as memory and concentration problems, cognitive decline and fatigue (January 2002). In Velez v. Shinseki, 23 Vet. App. 199 (2009), the Court specifically addressed the issue of whether the issue on appeal was a new claim or a request to reopen a previously denied claim. The Court provided a test for distinguishing a new claim, which included looking to how broadly the RO adjudicated the scope of the prior claim. In this case, many of the psychiatric issues listed on the NOD are the same symptoms the Veteran had previously claimed, which were interpreted as a claim for entitlement to service connection for adjustment disorder. Accordingly, the Board has characterized the claim for entitlement to service connection for psychiatric issues as a claim to reopen the previously denied claim of entitlement o service connection for adjustment disorder. Finally, all due process considerations have been met. Although additional evidence was received following the most recent SOC, including VA outpatient treatment records and VA examinations for other conditions, the Board has reviewed the evidence and determined that it is not pertinent or relevant to the issue at hand. While treatment records dated after April 28, 2015, the date of the SOC, showed that the Veteran was being treated for psoriasis and seborrheic dermatitis, the records were not relevant as to the issue of whether there is a nexus to his active duty service. See, e.g., Counts v. Brown, 6 Vet. App. 473, 476 (1994) (citing the Federal Rule of Evidence 401 defining “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). In the factual circumstances of this case, remand for the issuance of yet another SSOC would be a mere formality with no procedural or substantive benefit to the Veteran. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. June 18, 2015) (“A veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution.”). Since the evidence is not relevant and does not go to the issue at hand (nexus to service), a remand for a new SSOC is not required and would only cause more delay. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for psoriasis and seborrheic dermatitis, to include as a manifestation of an undiagnosed illness due to Persian Gulf War environmental exposures The Veteran seeks to reopen his claim for entitlement to service connection for psoriasis and seborrheic dermatitis. Although the RO initially recognized the psoriasis and seborrheic dermatitis claim had previously been denied (see September 2013 rating decision), it apparently reopened the claim and decided the merits in the April 2015 SOC. Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384; see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). Entitlement to service connection for psoriasis and seborrheic dermatitis has been denied several times beginning in 1999. The last final decision was a rating decision in September 2010 denying reopening of the claim. The Veteran neither perfected an appeal as to this decision, nor was new and material evidence submitted within one year, and the decision became final. The Veteran asserts that his psoriasis is related to his active duty service, to include as undiagnosed illnesses due to Gulf War service. In support of his claim, the Veteran has submitted an article titled Meteorological and Intelligence Evidence of Long-Distance Transit of Chemical Weapons Fallout from Bombing Early in the 1991 Persian Gulf War. However, this evidence, while new, is not material, as the RO has previously conceded the Veteran was exposed to chemicals during his period of active duty. The article does not discuss any skin issues caused by chemical exposure. The Veteran also submitted a statement dated February 2013 in which he asserted that his psoriasis is related to his active duty service. This statement is not new, as the RO has previously considered the Veteran’s belief that his psoriasis is related to active duty several times previously. Although the claims file contains extensive evidence of the Veteran’s ongoing treatment for psoriasis and seborrheic dermatitis, there remains no evidence that his psoriasis and seborrheic dermatitis is etiologically related to his active duty service, to include as a manifestation of an undiagnosed illness due to Gulf War environmental exposures. In his October 2013 notice of disagreement, the Veteran argued that his psoriasis and seborrheic dermatitis was caused by oral and injected vaccines he was issued while on active duty. This new theory of entitlement does not constitute a new claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (multiple theories of entitlement pertaining to the same benefit for the same disability constitute the same claim). Further, a new theory of entitlement does not necessarily reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005) (In delineating a distinction between claims and theories when considering the question of finality, the Federal Circuit Court held that, pursuant to 38 U.S.C. § 7104 (b), “finality attaches once a claim for benefits is disallowed, not when a particular theory is rejected.”). Thus, it is necessary to determine whether this new theory, in conjunction with the evidence of record, is sufficient to reopen this claim. The claims file contains no medical or lay evidence connecting the Veteran’s psoriasis or seborrheic dermatitis to vaccines issued while on active duty service. The Veteran’s treating physicians have never suggested that his psoriasis or seborrheic dermatitis are related to any vaccines the Veteran may have been exposed to. As such there is no evidence, beyond the Veteran’s unsubstantiated statement, that his psoriasis and seborrheic dermatitis are related to vaccinations. Accordingly, the claim cannot be reopened at this time because there is no evidence the Veteran’s psoriasis and seborrheic dermatitis are etiologically related to his active duty service, to include as a manifestation of an undiagnosed illness due to Gulf War environmental exposures or as secondary to vaccines. (Continued on Next Page)   REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for chronic fatigue, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for muscle and joint pain, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for adjustment disorder with mixed emotional features, and depressed mood, to include as a manifestation of an undiagnosed illness or a chronic multi-symptoms illness, is remanded. 4. Entitlement to service connection for respiratory disorders, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. 5. Entitlement to service connection for sleep apnea, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. 6. Entitlement to service connection for sleep disturbances, to include as a manifestation of an undiagnosed illness or a chronic multi-symptom illness, is remanded. A September 2013 rating decision denied entitlement to service connection for chronic fatigue and Gulf War illness, which the RO later interpreted as claims for entitlement to service connection for chronic fatigue, muscle and joint pain, adjustment disorder with mixed emotional features, respiratory disorders, sleep apnea, and sleep disturbances. See discussion, supra. The Veteran submitted a timely NOD expressing disagreement with the RO’s handling of the issues. The submission of an NOD confers the Board jurisdiction over these matters. When a veteran files a timely NOD as to a particular issue and no statement of the case (SOC) is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The RO has not provided a SOC on this claim, so a remand is required. The Veteran should understand that, after the RO issues an SOC, he must timely file a substantive appeal (e.g. VA Form 9) in order to perfect his appeal and permit a decision on the merits by the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b). The matter is REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issues identified above. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel