Citation Nr: 1338105 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 13-22 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for hyperpigmentation of the feet. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active duty service from July 1991 to September 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied service connection for hyperpigmentation of the feet. In her December 2012 notice of disagreement, the Veteran initially noted that she disagreed with the denial of the hyperpigmentation claim, as well as a denial of service connection for tinea cruris/folliculitis, rash. In the May 2013 statement of the case, both of those issues were addressed. However, in the Veteran's August 2013 substantive appeal, VA Form 9, she indicated that she wished to only pursue the hyperpigmentation claim on appeal. The Board therefore notes that it does not have jurisdiction over the tinea cruris claim. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Upon review of the claims file, the Veteran's service records document that she served in the Persian Gulf during her period of service; accordingly, she is a Persian Gulf War Veteran, and she is therefore eligible for service connection of Undiagnosed Illnesses under 38 C.F.R. § 3.317. The Board notes, however, that the notice letter that she received in May 2012-prior to her discharge from service-did not include this potential theory of entitlement in the notice provided to her, nor does it appear that the RO has considered the applicable Undiagnosed Illness regulations in either the November 2012 rating decision or the May 2013 statement of the case. Accordingly, the Board finds that a remand is necessary at this time in order for appropriate notice to be issued to the Veteran and so that the agency of original jurisdiction (AOJ) may readjudicate the hyperpigmentation claim with consideration of the Undiagnosed Illness regulations. (This is particularly important given the RO's determination in its 2012 rating decision that there was no diagnosed disease.) The Veteran should be asked for information regarding any private and VA treatment she may have received since discharge from service for her feet hyperpigmentation, and any such identified records should 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). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate notice with respect to her claim of service connection for hyperpigmentation of the feet. Such notice should be compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and 38 C.F.R. § 3.317 (2013), for the theory concerning Persian Gulf War Undiagnosed Illnesses. 2. Ask the Veteran to identify any VA or private treatment that she may have had for her feet since discharge from service in September 2012. 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 she can make an attempt to obtain those records on her own behalf. 3. The AOJ should undertake any additional development as deemed appropriate and necessary in this case, including VA examination. 4. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for hyperpigmentation of the feet. If the benefit sought on appeal remains denied, the Veteran and her 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 supplemental statement of the case should specifically include the provisions of 38 C.F.R. § 3.317, and should specifically consider service connection under that theory of entitlement.) 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 claim 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. 2013). ________________________________ 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) (2013).