Citation Nr: 1310285 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-00 400A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an evaluation in excess of 60 percent for mycosis fungoides (formerly characterized as tinea corporis, status post parapsoriasis, poikiloderma). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active duty service from September 1964 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an evaluation in excess of 60 percent for mycosis fungoides. . Review of the Veteran's VA treatment records demonstrates that in May 2012, it was noted that the Veteran has had several biopsies of his skin disorder at outside medical providers at VA's expense, but that VA has not obtained the results of those biopsies and that they are not in VA's medical records. VA asked the Veteran to bring copies, but he forgot at that time. VA was shown to last have a biopsy of the Veteran's skin disorder on file in 1989. Given that VA has paid for the biopsies, and that they would be potentially relevant evidence in this case, the Board finds that a remand is necessary in order to obtain any outstanding biopsies regarding the Veteran's skin disorder since 1989. (Additionally, the Veteran noted in a January 2010 letter, that he was going to a private dermatologist and needed more time to obtain the records of those evaluations. The record does not reflect that such evaluation reports have been obtained.) Moreover, any ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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 Board additionally finds that the Veteran's most recent VA examination in April 2012 is not adequate . First, it appears that photographs of the Veteran's skin disorder were taken during that examination but were not provided with the examination report. On remand, those photographs should be obtained and associated with the claims file, if possible. If such photographs are unavailable, such should be noted in the claims file and the Veteran should be so notified. Secondly, the Board notes that the April 2012 examiner noted that the Veteran's head, face and neck were not implicated in his disorder; however, after reviewing the record, it appears that the Veteran's neck is sometimes affected, as was noted in the January 2008 VA examination and in a September 2008 treatment record showing nodules on his neck in close proximity to his jaw. Given this evidence, it appears that the Veteran's skin disorder implicates Diagnostic Code 7800, which requires specific consideration of any disfigurement of the head, face, or neck. As the April 2012 examiner did not make any findings regarding those criteria in his examination report, the Board finds that a remand is necessary in order for a new VA examination to be afforded to the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Additionally, the Board notes that the April 2012 VA examiner did not discuss the Veteran's current employment status or any interference, marked or otherwise, with the Veteran's occupation, should such exist, in his examination report. The Veteran has also contended that he experiences loss of function due to pain or decreased range of motion of certain areas, such as in his back or lower extremities. Such functional losses due to service-connected skin disability must also be analyzed on remand. 38 C.F.R. § 4.118 (2008). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Atlanta or Augusta VA Medical Centers, or any other VA medical facility that may have treated the Veteran, since September 2012 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment or evaluation that he may have had for his skin disability, which are not already of record, including any biopsies performed since 1989. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Attempt to obtain the photographs of the Veteran's skin disability from the April 2012 VA examination and associate them with the claims file. If those photographs are unavailable and further attempts would be futile, such should be noted in the claims file in a formal finding of unavailability and the Veteran should be so notified. 4. Schedule the Veteran for a VA examination in order to determine the current nature and severity of his skin disability. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including photographs, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should discuss the following: (a) Whether the Veteran has or in the past had any malignant neoplasms of the skin, to include the Veteran's contentions that he has "incurable cancer." The examiner should also discuss whether the Veteran has at any time had any therapy comparable to that used for systemic malignancies, including systemic chemotherapy, x-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision. The examiner should attempt to pinpoint the date of onset of treatment for any such noted systemic malignancy therapy. (b) The examiner should discuss whether the Veteran has visible or palpable tissue loss and either gross distortion or asymmetry of features or paired sets of features (nose, chin, forehead, eyes including eyelids, ears/auricles, cheeks or lips); and how many characteristics of disfigurement as listed in 38 C.F.R. § 4.118, Diagnostic Code 7800, as a result of his skin disorder the Veteran has throughout the appeal period. The examiner should specifically discuss the findings in the January 2008 examination report and the September 2008 VA treatment note, as well as any other evidence of record, including lay evidence from the Veteran, regarding skin symptomatology affecting his head, face and neck; such evidence should be used to determine whether the Veteran has any of the above criteria at a time when his condition is in a flare-up, and not just on examination. (c) Whether the Veteran has more than 40 percent of his entire body or exposed body areas affected by his skin condition, or whether constant or near-constant use of systemic therapy, such as corticosteroids or other immunosuppressive drugs, has been required to treat the Veteran's condition within the last 12 months. (d) Whether any functional losses occur because of the Veteran's skin disability, such as limitation of motion caused by contractures or pain due to scarring or skin eruptions, etc. If functional losses (due to pain or otherwise) are noted, the way each part affected is limited should be described in detail, including limitation of motion, pain, weakness, etc. (Where there is limitation of motion, degrees of motion lost should be noted and all functional losses affecting the joint should be equated to additional loss of motion-beyond what is shown clinically.) Finally, the examiner should discuss the effect of the Veteran's skin disability has on his employment, including whether such produces marked interference with his ability to perform his occupation. If the Veteran is no longer employed, the examiner should opine as to whether the Veteran is precluded from substantially gainful employment as a result of his skin disability and explain why. A rationale for all opinions expressed should be provided. If the examiner cannot respond without resorting to speculation, she/he should explain why a response would be speculative. 5. Following the above development, the AOJ should consider whether referral for extraschedular consideration is required. Thereafter, re-adjudicate the Veteran's claim for increased evaluation. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________ MARK F. HALSEY 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).