Citation Nr: 0603581 Decision Date: 02/08/06 Archive Date: 02/22/06 DOCKET NO. 04-12 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a 100 disability evaluation for prostate cancer and its residuals from August 16, 2002, to April 15, 2003. 2. Entitlement to a compensable disability evaluation for residuals of prostate cancer surgery from April 16, 2003. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from February 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating determination of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO, in an April 2003 rating determination, assigned a noncompensable disability evaluation for residuals of prostate cancer from August 16, 2002, the date of the receipt of the veteran's claim. The issue of a compensable disability evaluation for residuals of prostate cancer subsequent to April 15, 2003, is remanded to the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDING OF FACT The veteran's application for prostate cancer was received on August 16, 2002, and he had prostate surgery on October 15, 2002, for treatment of prostate cancer. CONCLUSION OF LAW The criteria for a 100 percent disability evaluation for prostate cancer and residuals of prostate cancer surgery were met from August 16, 2002, to April 15, 2003. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.7, 4.115b, Diagnostic Code 7528 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board notes that any procedural defect which may have occurred as a result of noncompliance with the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot by virtue of the veteran being granted the full benefit sought on appeal as it relates to the time period from August 16, 2002, to April 15, 2003. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Malignant neoplasms of the genitourinary system are rated as 100 percent disabling under Diagnostic Code 7528. In the note following this code, it is indicated that following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. At the time of receipt of his application for prostate cancer, the veteran had been diagnosed with prostate cancer. Subsequently, the veteran underwent a radical prostatectomy on October 15, 2002. Based upon the above rating criteria, a 100 percent disability evaluation is warranted from August 16, 2002, as the veteran had prostate cancer at the time of his application for compensation, warranting a 100 percent disability evaluation. As the veteran had surgery on October 15, 2002, a 100 percent disability evaluation is warranted for the six month period following surgery. As such, a 100 percent disability evaluation is warranted until April 15, 2003. As noted above, the issue of entitlement to a compensable evaluation for residuals of prostate cancer subsequent to April 15, 2003, has been remanded for further development. ORDER A 100 percent disability for prostate cancer and subsequent surgical procedure from August 16, 2002, until April 15, 2003, is granted subject to regulations governing monetary benefits. REMAND At his March 2005 hearing, the veteran testified that his condition had progressively worsened since his last VA examination. VA is obliged to afford a veteran contemporaneous examinations where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The veteran is competent to provide an opinion that his disabilities have worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board further notes that the veteran also testified as to recently having received treatment for his prostate cancer residuals at the John Cochrane VA Medical Center (VAMC). Under Bell v. Derwinski, 2 Vet. App. 611 (1992), VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees. Id. at 612-13. If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). Accordingly, this matter is remanded for the following: 1. The AMC or RO should obtain copies of all records of the veteran's treatment for residuals of prostate cancer at the John Cochrane VAMC from 2004 to the present. 2. The veteran should be scheduled for a VA genitourinary examination to determine the severity of his service-connected prostate cancer residuals. All necessary tests and studies should be performed and all findings should be reported in detail. The claims folder, including a copy of this remand, should be made available to the VA examiner for review. It is essential that the examiner report voiding dysfunction, urinary frequency during the day and at night, need for use of absorbent materials (and frequency with which they must be changed), use of appliances, frequency of urinary tract infections. These specific findings are needed to rate the disability in accordance with the rating schedule. The veteran is advised that the examination is needed to evaluate his claim, and that if he fails to report for the examination without good cause, his claim could be denied. 38 C.F.R. § 3.655 (2005). 3. The AMC or RO should readjudicate the claim, and if it remains denied, issue a supplemental statement of the case before returning the case to the Board if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs