Citation Nr: 1315916 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 10-32 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a skin disability, to include mycosis fungoides, claimed as the residuals of meningococcal pneumonia and/or chemical exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to March 1982. This matter is before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefit sought on appeal. In October 2010, the Veteran presented testimony at a personal hearing conducted at the Detroit RO before the undersigned who is rendering the determination in this case. A transcript of this personal hearing is in the Veteran's claims folder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND As a preliminary matter, the Board observes that this issue was originally characterized by the RO in the March 2009 rating decision as a claim for whether new and material evidence had been submitted to reopen a claim for a skin disorder, which was most recently denied in a June 2001 rating decision. However, in the June 2010 statement of the case, the RO recharacterized the issue as a new claim for service connection. The Board has considered whether the claim is a new claim or the same claim as the one previously denied. This is important because, if it is a new claim, then there is no requirement of new and material evidence to reopen the claim but if it is the same claim that was previously and finally denied, then new and material evidence is required to reopen the claim. In Boggs v. Peake, 530 F.3d 1330 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided guidance in distinguishing between new claims and previously denied and final claims. The Federal Circuit explained that merely asserting a different theory of entitlement for the same disability does not give rise to a "new" claim; and neither does a misdiagnosis. Id. at 1336. Rather, it held "claims based on distinctly and properly diagnosed diseases or injuries cannot be considered the same claim." Id. at 1335. The Board concludes that the matter should be recharacterized as a new claim because there is a new skin-related diagnosis that was not diagnosed at the time of the last final denial of the claim for a skin disorder in June 2001. In this regard, in a June 1983 statement, the Veteran requested service connection for a skin condition that was on his right chest area. The claim was denied in a June 1983 rating decision because there was no diagnosis of a skin condition in his service treatment records. In a May 1984 decision, the Board appeared to address the Veteran's claim for a skin condition as a residual of in-service pneumonia. In particular, the Board noted the November 1982 VA examiner's findings of scattered coin sized pigmented areas around the right axilla and side of chest with several small pustules and diagnosis of folliculitis, post inflammation pigmentation. In November 2000, the Veteran again filed a claim for a "skin condition." This claim was denied in a June 2001 rating decision because no new and material evidence had been submitted. Thus, at the time of the June 2001 denial, the only diagnosis of record was folliculitis of the right axilla and side of chest. In December 2008, the Veteran requested service connection for a skin condition; in particular mycosis fungoides, and asserted that he has had rashes on his buttocks and back since his service. The Board observes that the Veteran specifically claimed a diagnosed skin disability and described the skin disability as located in a different part of the body than that addressed in the June 2001 decision. A December 2008 private treatment record from Dr. M.D. Siegel contains a diagnosis of mycosis fungoides from a tissue specimen on the buttock, which was not of record at the time of the June 2001 denial. Given the new diagnosis and new affected area of the skin involved, the Board will treat this as a new claim. This does not result in any prejudice to the Veteran because it relieves him of the burden of demonstrating that new and material evidence has been submitted to reopen the claim. The Board concludes that before a decision can be reached in this matter, a remand is necessary. The Veteran testified that his skin disability is a residual of his in-service diagnosis of meningococcal pneumonia, the result of exposure to the gas chamber when participating in Nuclear Biochemical (NBC) Warfare Training, and/or caused by pills he took during service to prevent an upper respiratory infection. See Hearing Transcript at 3-4 and July 2010 Form 9. He added that shortly after he separated from service, he was treated at the VA facility in Allen Park for a rash on his buttocks that has been present ever since and was diagnosed as T cell lymphadenopathy with mycosis fungoides in 2009. See Hearing Transcript at 4 and June and October 2009 private treatment records from the Karmanos Cancer Center. The Veteran's service treatment records reflect diagnoses of meningococcal pneumonia. His immunization record shows that he was given several vaccinations, to include meningococcal type C in October 1981. As indicated in a February 1982 letter from J.M. Herold regarding the Trainee Discharge Program, the Veteran was hospitalized with pneumonia for ten weeks. However, although some records from the Martin Army Hospital in Fort Benning, Georgia are of record, the Veteran's complete clinical records pertaining to a ten week hospital stay are not available. The Board concludes that an attempt should be made to obtain the Veteran's clinical records from this hospital. Further, as the Veteran has indicated that his hospitalization for meningococcal pneumonia occurred right after going through NBC Warfare Training, a remand for his personnel records that might have details of such is necessary. In his June 1983 claim, the Veteran stated that he was treated at the VAMC in Allen Park for a skin condition on his right side chest area. During his hearing, the Veteran testified that he was treated at that facility in 1982 for the rash on his buttocks that he believes led to the diagnosis of mycosis fungoides. See Hearing Transcript at 4, 8. The Board notes that these records have not been associated with the claims file. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board further notes that the VA facility in Allen Park no longer exists and has been relocated to the Detroit VAMC. Thus, records should be requested from this facility. Additionally, the Board observes that during his November 1982 VA examination, the Veteran mentioned treatment for an "infection under right side, and underarm, very painful" at "Sinai Hospital" in September 1982. Although the treatment was noted to be for an infection and not a skin disability, the "infection site" is the same location where the VA examiner diagnosed folliculitis, i.e., right axilla and side of chest. The Board's research indicates that "Sinai Hospital" might refer to the Detroit Medical Center (DMC) Sinai-Grace Hospital. Since DMC Sinai-Grace Hospital might have records pertaining to the Veteran's claim, a remand is necessary to ask him to submit a release for VA to attempt to obtain these records. 38 C.F.R. § 3.159(c)(1) (2012). Further, during his hearing, the Veteran testified that he received ultra-violet light therapy for his diagnosed disability at Oakwood Hospital in Dearborn in April 2010. See Hearing Transcript at 9 and July 2010 Form 9. On remand, the Veteran should be asked to submit a release for VA to obtain these records. Lastly, a December 2008 letter from Drs. M.T. and M.D. Siegel states that "it is quite likely" that the Veteran's diagnosis of mycosis fungoides began during his military service. However, the Board observes that this diagnosis is based, at least in part, on the Veteran's self report that he has had a rash on his buttocks since service. Although the Veteran is competent to report such, the first objective evidence of a rash on the buttocks was not until 2008. However, as stated above, there are outstanding potentially relevant private and VA medical records dated as early as 1982 that VA will attempt to associate with the claims file on remand. Therefore, the Board concludes that once all available medical records have been obtained, and all necessary development has been completed, the Veteran should be afforded a VA examination in connection with his claim. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran's complete clinical records from Martin Army Hospital for his 10 week hospitalization from November 1981 to January 1982 and associate them with the claims file. 2. Obtain the Veteran's service personnel records, in particular any records related to participating in Nuclear Biochemical (NBC) Warfare Training in October and November 1981, and associate them with the claims file. 3. Obtain VA treatment records dated from 1982 to the present from the VA facility in Allen Park, which is now located in Detroit, and associate them with the claims file. Archived records should be requested. 4. After securing any necessary releases, obtain private treatment records from the Detroit Medical Center Sinai-Grace Hospital dated in September 1982 and from the Oakwood Hospital in Dearborn, Michigan dated from April 2010 to the present and associate them with the claims file. 5. If any of the records requested in items 1-4 are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 6. After the development in 1-5 has been completed, schedule the Veteran for a VA examination to evaluate his claim for service connection for a skin disability, to include mycosis fungoides. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with this request. The examination report must include responses to each of the following items: Based on a review of the claims file and the examination findings, including the service treatment records, private treatment reports, and VA treatment reports, the examiner should render any relevant diagnoses pertaining to the claim for a skin disability, to include mycosis fungoides. Additionally, the examiner should state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current skin disability is causally or etiologically related to his symptomatology in military service. In particular, the examiner should address the relationship, if any, between the in-service diagnosis of meningococcal pneumonia, chemical exposure while participating in the NBC Warfare Training, or his October 1981 meningococcal type C vaccine. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 7. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). _________________________________________________ M. SORISIO Acting 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).