Citation Nr: 1414651 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 05-03 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for tinea cruris. 2. Entitlement to an effective date earlier than January 12, 2005, for the award of service connection for non-Hodgkin's Lymphoma, status post surgical treatment, scar. 3. Whether the severance of service connection for non-Hodgkin's Lymphoma, status post surgical treatment, scar, effective June 1, 2012, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2006 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts and the Appeals Management Center (AMC) in Washington, D.C., respectively. The Veteran participated in a local hearing before a Decision Review Officer in November 2006. The transcript of the hearing is associated with the claims file. In an August 2012 decision, the Board denied entitlement to a disability rating in excess of 10 percent for tinea cruris and denied entitlement to an effective date earlier than January 12, 2005, for the award of service connection for non-Hodgkin's Lymphoma, status post surgical treatment, scar. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("Court"). In May 2013, the Veteran's representative and a representative of the VA Office of General Counsel filed a Joint Motion for Remand ("Joint Motion"). The Court granted the Joint Motion and vacated the Board's August 2012 decision. The case has been returned to the Board for review. In a May 2012 rating decision, the AMC severed the Veteran's award of service connection for non-Hodgkin's Lymphoma, scar, effective June 1, 2012. The Veteran filed a timely notice of disagreement. The filing of a notice of disagreement places the issue in appellate status and the issue is properly listed on the title page. In the August 2012 decision, the Board referred the issue of entitlement to service connection for a skin disability, other than tinea cruris, to the Agency of Original Jurisdiction (AOJ) for appropriate action. Review of the record does not indicate that the issue has been developed or adjudicated by the AOJ. As a result, the issue of entitlement to service connection for a skin disability, other than tinea cruris, is REFERRED to the AOJ for action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND With respect to the claim of entitlement to a disability rating in excess of 10 percent for tinea cruris, the Board finds that a new VA examination is warranted. In the Joint Motion, the parties indicated that the Board did not substantially comply with the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board's January 2011 remand requested that the Veteran be scheduled for a skin examination when the tinea cruris was in an active phase. The Veteran was provided a VA examination in March 2011 when his tinea cruris was not active. While the VA examiner noted that even during a flare-up, the tinea cruris would cover up to 10 percent of body surface area and 0 percent of exposed surface area, the parties stated that the remand required that the examination be conducted during an active phase. See Joint Motion, pg. 3. Therefore, a new VA examination is required to evaluate the nature and severity of his service-connected tinea cruris during an active phase. The evidence indicates that the Veteran receives ongoing VA medical treatment. Updated VA treatment records must be requested on remand. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). The issue of entitlement to an effective date earlier than January 12, 2005, for the award of service connection for non-Hodgkin's Lymphoma, status post surgical treatment, scar, must be deferred due to the pending issue of whether the severance of the award of service connection for non-Hodgkin's Lymphoma, status post surgical treatment, scar, was proper. In this respect, a May 2012 rating decision severed the award of service connection for non-Hodgkin's Lymphoma, status post surgical treatment, scar, effective June 1, 2012. In December 2012, the Veteran submitted a timely notice of disagreement. A Statement of the Case (SOC) has not yet been issued. See Manlincon v. West, 12 Vet. App. 238 (1999). The RO/AMC must issue a SOC and advise the Veteran that to vest the Board with jurisdiction over the issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2013). The issue of entitlement to an earlier effective date for the award of service connection must be deferred as any decision regarding severance will have a significant impact on the issue of whether the Veteran is entitled to an earlier effective date. The issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998) citing Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case (SOC) with respect to the issue of whether the severance of the award for non-Hodgkin's Lymphoma, status post surgical treatment, scar, was proper. The Veteran should be advised that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2013). If the Veteran perfects the appeal as to this issue, the RO/AMC should undertake all appropriate action. 2. Request updated VA treatment records from the Boston VA Medical Center and any associated outpatient clinics from March 2011 to the present. Any negative response must be documented in the claims file and the Veteran notified accordingly. 3. Schedule the Veteran for a VA examination during an active phase/flare-up of his tinea cruris. Ensure that the claims file is made available to the examiner and the examiner must note that the claims file was reviewed. The examiner should provide a history of the skin disorder, including the frequency and extent of any outbreaks, and discuss any and all manifestations of the tinea cruris. The examiner should give the extent of the tinea cruris in square inches or square centimeters and indicate whether the skin disorder is unstable, deep, superficial, poorly nourished with repeated ulceration, tender and/or painful on objective demonstration, and whether the disorder limits the function of, or causes limited motion of the affected part(s). The examiner must identify the percent of exposed areas affected and the percent of total body surface affected. Also, identify whether systemic therapy such as corticosteroids or other immune-suppressive drugs were required during the past 12-month period: (1) constantly or near constantly, (2) for a total of six weeks or more, but not constantly, or (3) for a total duration of less than six weeks; or whether no more than topical therapy was required during the past 12-month period. The examiner should describe the frequency, nature and extent of any itching, exfoliation, exudation, lesions, or disfigurement that is shown. If nervous or systemic manifestations are shown or if the condition is exceptionally repugnant, the examiner should so state. The examiner should provide a rationale for any opinion reached. 4. After the above development has been completed (after the expiration of the time period to appeal the issue of the propriety of the severance or after the Veteran has appealed the propriety of the severance), readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative and allow an appropriate amount of time to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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).