Citation Nr: 21076521 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-18 754 DATE: December 27, 2021 ORDER The claim that a timely notice of disagreement was filed to perfect an appeal of June 2010 and October 2010 rating decisions, that denied claims for service connection for psoriasis, psoriatic arthritis, and an autoimmune disorder, to include rheumatoid arthritis, is granted. The claim that a timely substantive appeal was filed to perfect an appeal on the issue of entitlement to service connection for psoriasis is granted. An effective date of April 30, 2010 for service connection for psoriasis is granted. REMANDED The claims for service connection for psoriatic arthritis, and an autoimmune disorder, to include rheumatoid arthritis, are remanded. FINDINGS OF FACT 1. On April 30, 2010, the Veteran filed a claim for service connection for psoriasis. 2. In a June 2010 rating decision, the RO denied claims for service connection for psoriasis and psoriatic arthritis. 3. In an October 2010 rating decision, the RO denied a claim for service connection for an autoimmune disorder, to include rheumatoid arthritis. 4. In December 2010, a Notice of Disagreement was received as to the RO's June 2010 and October 2010 rating decisions. 5. On November 2, 2012, a Statement of the Case was mailed to the appellant on the issue of service connection for psoriasis with psoriatic arthritis, also autoimmune disorder to include rheumatoid arthritis. 6. On January 2, 2013, a substantive appeal was received. 7. In November 2014, the RO granted service connection for psoriasis, with an effective date of August 29, 2013. CONCLUSIONS OF LAW 1. A timely NOD was filed to the June 2010 and October 2010 rating decisions, which denied claim for service connection for psoriasis, psoriatic arthritis, and an autoimmune disorder, to include rheumatoid arthritis. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 20.201. 2. A timely substantive appeal was filed to appeal the June 2010 rating decision that denied a claim for service connection for psoriasis. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 20.200, 20.202. 3. The criteria for an effective date for service connection for psoriasis of April 2010, and no earlier, have been met. 38 U.S.C. §§ 5101 (a), 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2020, the Board denied the Veteran's claim that a timely substantive appeal was filed to perfect an appeal of a February 2011 rating decision that denied a petition to reopen a claim of entitlement to service connection for psoriasis with psoriatic arthritis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Order, the Court granted a Joint Motion for Remand (JMR). 1. Whether a timely notice of disagreement was received as to the RO's June 2010 and October 2010 rating decisions that denied claims for service connection for psoriasis, psoriatic arthritis, and an autoimmune disorder, to include rheumatoid arthritis. The relevant history was discussed in the Board's March 2020 decision and is largely repeated herein. On April 30, 2010, the Veteran filed claims for service connection for psoriasis, and psoriatic arthritis. See Veteran's Application for Compensation and Pension, received April 30, 2010. Following communications received from the Veteran, these claims were construed to include a claim for an auto-immune disorder. See e.g., RO's June 9, 2010 duty-to-assist letter. In June 2010, the RO denied the claims for service connection for psoriasis, and psoriatic arthritis; the RO stated that they were continuing to work on the claim for an auto immune disorder that was received on June 8, 2010. In October 2010, the RO denied service connection for an autoimmune disorder, to include rheumatoid arthritis. In a December 2010 statement (dated on December 16, 2010, and date stamped as received on December 21, 2010), the Veteran's mother indicated that the Veteran sought benefits for psoriasis, psoriatic arthritis, and auto-immune disorder. Additional treatise evidence was also associated with the record in December 2010. It was requested that the Veteran's claim be "backdated" to April 30, 2010. In February 2011, after additional evidence was received, the RO stated that it had "confirmed and continued" its denials of all three claims. The Veteran was informed of this decision by correspondence dated February 17, 2011. In February 2012, the Veteran filed a VA Form 9 that was accepted as a timely NOD by the RO as to its February 2011 rating decision. On November 2, 2012, a statement of the case (SOC) was issued. The issue listed was characterized as "service connection for psoriasis with psoriatic arthritis (also autoimmune disorder to include rheumatoid arthritis)." On January 2, 2013, the Veteran submitted a statement, dated December 30, 2012, in which he argued the following: He had submitted "considerable evidence" in support of his current claim that had been "generalized, passed-over, or not even listed in the rejection notice." He had given some copies of his original medical records to the Hartford RO with respect to a prior and unrelated claim in 2000. However, in rejecting his current claim the RO indicated that it did not have any records from the 1980s or 1990s. After the RO denied his current claim (in 2011), he resubmitted those records to his VSO (The American Legion). He has previously submitted an appeal (VA Form 9) dated February 16, 2012, to VA. The Veteran discussed how to secure missing records, and he attached a FOIA (Freedom of Information Act) request that he had sent to the Air Force, discussing the denial of his claim by VA. In February 2013, the Veteran submitted additional lay statements from himself and his parents, with hand drawn maps, treatise evidence, and details concerning his health and in-service jet fuel/toxic chemical exposures. In May 2013, the Veteran, through his representative, filed substantive appeals via a VA Form 9 (Appeal to the Board of Veterans' Appeals) dated February 16, 2012 and April 30, 2013. These appeal forms were received/date stamped by the RO on May 1, 2013. On May 21, 2013, the RO issued an administrative decision finding that a timely substantive appeal had not been received in response to the November 2012 SOC, and that the February 2011 rating decision is final. In September 2013, the Veteran filed a NOD with regard to the RO's timeliness determination. In April 2014, a SOC was issued. In May 2014, the Veteran filed a substantive appeal. In November 2014, the RO granted service connection for psoriasis due to jet fuel exposure, with an effective date of August 29, 2013, and determined that new and material evidence had not been submitted to reopen claims for service connection for psoriatic arthritis, or an auto-immune disorder, to include rheumatoid arthritis, with both claims to include as due to exposure to jet fuel. In July 2015, the Veteran submitted an additional statement in support of his claim. In November 2015, the Board denied the claim that the Veteran had submitted a timely appeal on the issue of entitlement to service connection for psoriasis with psoriatic arthritis. The Board noted that the Veteran had until January 2, 2013 to file his appeal. Citing 38 C.F.R. § 20.305(a). The Board stated that the Veteran's appeal was not timely received, and that there was no other basis to find that the Board had jurisdiction over the claim. Citing 38 C.F.R. § 19.32; Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). In June 2019, the Court vacated and remanded the Board's decision, stating that the Board had not explained or analyzed the complicated procedural history, and that "[g]iven the complex procedural history and the Board's failure to properly address this history, judicial review is frustrated." In March 2020, the Board denied the Veteran's claim that a timely substantive appeal was filed to perfect an appeal of a February 2011 rating decision that denied a petition to reopen a claim of entitlement to service connection for psoriasis with psoriatic arthritis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Order, the Court granted a Joint Motion for Remand (JMR). The JMR indicates that a preliminary issue had been raised by the record as to whether or not a timely notice of disagreement was filed to perfect an appeal of June 2010 and/or October 2010 rating decisions, which denied claims for service connection for psoriasis, psoriatic arthritis, and an autoimmune disorder, to include rheumatoid arthritis. The JMR indicates that this issue is within the scope of the issue on appeal. See e.g., EF v. Derwinski, 1 Vet. App. 324 (1991). As this issue predates and impacts the issue on appeal as it was originally characterized (i.e., "whether a timely substantive appeal was filed to perfect an appeal of a February 2011 rating decision that denied a petition to reopen a claim of entitlement to service connection for psoriasis with psoriatic arthritis"), it will first be discussed. The issue is whether the Veteran's December 2010 submissions, which included a request for reconsideration, satisfy the criteria for a valid NOD to either or both of the RO's 2010 decisions (dated in June and October). The JMR acknowledged that the Board's March 2020 decision had determined that the Veteran's December 2010 submissions could not reasonably be construed as a NOD. The JMR states that although the Veteran's mother had requested reconsideration of the rating decisions, "given the timing" of the December 2010 letter, the identification of both the June and October 2010 rating decisions, and the assertion of errors in adjudication of the claim, the parties agree that the Board failed to provide an adequate statement of reasons or bases for finding that the December 2010 request for reconsideration could not reasonably also be construed as an NOD. Prior to March 24, 2015, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute a NOD. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. If the RO gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201. "[T]he actual wording of the communication and the context in which it was written" must be considered in determining whether it constitutes an NOD. Jarvis v. West, 12 Vet. App. 559, 561 (1999). All communications should be liberally construed. Id. at 561-62. A broad NOD may confer appellate jurisdiction over all the issues adjudicated in a rating decision. A "narrow or specific NOD," by comparison, may limit appellate jurisdiction to the issue(s) specifically identified in the NOD. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). The Court has stated that the VA adjudication process "'is not meant to be a trap for the unwary" or "a stratagem to deny compensation [nor] a minefield" for claimants. Percy v. Shinseki, 23 Vet. App. 37, 47 (2009). In Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002), the United States Court of Appeals for the Federal Circuit held that 38 C.F.R. § 20.201 imposed no technical formal requirements for an NOD beyond the requirements set by 38 U.S.C. § 7105, and that to impose any such requirement would exceed the Secretary's [regulatory] authority under 38 U.S.C. § 501. Citing Tomlin v. Brown, 5 Vet. App. 355, 357 (1993). The Court stated that Tomlin required only that the NOD be timely filed with the RO and express disagreement, be filed by or for the claimant, and be "in writing," and that it did not require, or even refer to, an expression of a desire for appellate review, or a reasonable implication of such a desire, as the regulation appeared to call for. The Court held that the additional regulatory requirement for an expression of a desire for appellate review was invalid as it was beyond the scope of 38 U.S.C. § 7105. The Board finds that the Veteran's December 21, 2010 submissions satisfy the criteria for a NOD as to both the RO's June 2010 and December 2010 decisions. As noted by the Board in its March 2020 decision, the Veteran's December 2010 letter (which it referred to as a "request for reconsideration") was composed by the Veteran's mother, but was read, signed and approved by the Veteran. Although this submission specifically asked for reconsideration and did not specifically express a desire for appellate review, a request for appellate review is not a requirement for a NOD under 38 C.F.R. § 20.201. Gallegos. The Veteran's December 2010 submissions discussed alleged errors by the RO, and included a list of questions concerning the October 2010 rating decision as well as an extended discussion of alleged errors, misjudgments, improper processing, and confusion, concerning VA and the claims process. It also included a discussion of additional evidence submitted at that time, and a discussion of the evidence already of record. Under the circumstances, the Veteran's December 2010 submissions can reasonably be construed as expressing disagreement with the RO's June 2010 and October 2010 rating decisions, and they meet the criteria for an NOD as found at 38 U.S.C. § 7105 as to those decisions. See also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement"). Accordingly, the Veteran's submissions received in December 2010 satisfy the criteria for a NOD as to both the RO's June 2010 and December 2010 decisions. 2. Whether a timely substantive appeal was filed to perfect an appeal of the issue of entitlement to service connection for psoriasis. The issue on appeal as originally characterized was whether a timely substantive appeal was filed to perfect an appeal of a February 2011 rating decision that denied a petition to reopen a claim of entitlement to service connection for psoriasis with psoriatic arthritis. In Part 1 of this decision, the Board has determined that the Veteran submitted a timely NOD to the Board's June 2010 and October 2010 rating decisions. The RO's June 2010 and October 2010 decisions therefore did not become final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. As such, the SOC issued in November 2012 was incorrect to the extent that it that it indicated that the RO's June 2010 decision was final and that it characterized the Veteran's December 2010 submission as a "petition to reopen" his claims for service connection. It follows that at the time of the November 2012 SOC the issue should have been characterized as entitlement to service connection for psoriasis. Nevertheless, the issue before the Board remains whether or not a timely substantive appeal was received as to the November 2021 SOC. In the Board's March 2020 decision, the Board concluded that the RO had properly treated a communication from the Veteran received by VA in December 2010 as an attempt to reopen a previously denied claim, that the RO had properly treated a VA Form 9, received in February 2012, as a NOD to the RO's February 2011 decision and that it may not be considered to be a substantive appeal, and that the Veteran's letter received on January 2, 2013 did not constitute a timely substantive appeal. The JMR shows that it was agreed that the Board had failed to provide an adequate statement of reasons or bases addressing whether or not the Veteran's December 30, 2012 letter (received by VA on January 2, 2013) (hereinafter "January 2013 letter") constituted a timely substantive appeal. The JMR acknowledged that the Board had analyzed the Veteran's submissions received between January and February of 2013, and that the Board had concluded that none of them may be considered to be a substantive appeal. The Board had concluded that nowhere in any of these documents did the Veteran indicate or identify that he wished to continue his appeal, what issues were being perfected, the benefit he wanted, the facts in the SOC with which he disagreed and/or the errors he believed that VA made in applying the law. The JMR noted that the Board had characterized the January 2013 letter as the Veteran "describ[ing] receiving a copy of his claims file and his opinion that the records were provided to him in a disorganized or haphazardly way." Pursuant to applicable law and regulation, an appeal consists of a timely filed NOD in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. A substantive appeal perfects the appeal to the Board and frames the issues to be considered. Myers v. Derwinski, 1 Vet. App. 127, 129 (1991). A substantive appeal consists of a properly completed VA Form 9 (Appeal to Board of Veterans' Appeals) or other correspondence containing the necessary information. The substantive appeal must also indicate what issues are being perfected. Proper completion and filing of a substantive appeal are the last actions a veteran must take to perfect an appeal. 38 C.F.R. § 20.202. A substantive appeal must be filed within sixty days from the date that the RO mails the SOC to the Veteran, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. The substantive appeal should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed. Id. The Board finds that the Veteran's January 2013 letter, received following the issuance of the November 2012 SOC, satisfies the criteria for a timely substantive appeal. The JMR shows that the parties agreed that this letter was "timely received" by VA, as it was date stamped as received by the VA RO mail room on January 2, 2013, within 60 days of issuance of the SOC dated on November 2, 2012. The JMR further shows that it was agreed that the law provides that when there is only a single issue identified in the SOC, as in this case, an explicit statement of the issue appealed is not required so long as there is a clear implication that the claimant seeks to contest VA's decision. Citing Rivera v. Shinseki, 654 F.3d 1377, 1382 (Fed. Cir. 2011). It was further agreed the Board failed to acknowledge that the Veteran had identified specific allegations of error with respect to the November 2012 SOC. Specifically, he asserted that the RO erred because it failed to obtain missing records identified by the Veteran in support of his 2010 claim, and it had failed to consider pertinent medical evidence missing from the record that had been identified by the Veteran. In summary, the JMR shows that it was essentially agreed that the criteria for a timely substantive appeal have been met, i.e., that the Veteran's January 2013 letter was received by VA within 60 days of the November 2, 2012 SOC, and that it set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed. As such, the Board concludes that the criteria for a timely substantive appeal under 38 C.F.R. § 20.302 were satisfied by the Veteran's January 2013 letter. Accordingly, the Board finds that a timely substantive appeal was received with respect to the November 2, 2012 SOC, and that an appeal was perfected as to the RO's June 2010 rating decision which denied service connection for psoriasis. The appeal is granted. 3. Effective date, service connection for psoriasis. In November 2014, the RO granted service connection for psoriasis due to jet fuel exposure, with an effective date of August 29, 2013. The RO's assignment of the effective date appears to have been based on the assumption that its June 2010 rating decision, which denied service connection for psoriasis, was final. The RO therefore assigned an effective date commensurate with the Veteran's "claim to reopen" received on August 29, 2013, based on the provisions for reopened claims. See 38 C.F.R. § 3.400 (q)(2), (r); Veteran's VA Form 21-526(b), received on August 29, 2013. In this decision, the Board has determined that a timely NOD was received as to the RO's initial denial of this claim for service connection for psoriasis in June 2010. The issue of entitlement to an earlier effective date for service connection for psoriasis has therefore been raised by the record and is within the scope of the issue on appeal. EF v. Derwinski, 1 Vet. App. 324 (1991). The effective date for disability compensation claims based on direct service connection is 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, the effective date is the date of the receipt of claim, or the date that the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). On April 30, 2010, the Veteran filed a claim for service connection for psoriasis. In June 2010, the RO denied the claim and the RO has treated that decision as final. However, the Board has determined that a timely notice of disagreement was received as to the RO's June 2010 rating decision denying service connection for psoriasis, and therefore that decision is not final. In November 2014, the RO granted the claim and assigned an effective date in August 2013. Given the foregoing, an effective date commensurate with the date of receipt of the Veteran's original claim, April 30, 2010, is warranted for service connection for psoriasis. Id. An effective date prior to April 30, 2010 is not warranted, and the evidence does not show that a claim for service connection involving this disability was filed at any time prior to April 30, 2010. REASONS FOR REMAND The Board has determined that a timely NOD was received as to the issues of entitlement to service connection for psoriatic arthritis, and an autoimmune disorder, to include rheumatoid arthritis. These issues are under the Board's jurisdiction, and issuance of statements of the case (SOCs) on these issues is warranted. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOCs, the claims should be returned to the Board only if the Veteran perfects an appeal in a timely manner. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: (Continued on the next page) Issue a statement of the case on the issues of entitlement to service connection for psoriatic arthritis, and an autoimmune disorder, to include rheumatoid arthritis. These issues should only be returned to the Board if a timely substantive appeal is filed. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.