Citation Nr: 0813298 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-12 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable disability rating for prostatectomy residuals from May 28, 2004, to May 8, 2007, other than a period of a temporary total disability rating from August 17, 2005, to May 1, 2006. 2. Entitlement to an initial disability rating in excess of 20 percent for prostatectomy residuals from May 9, 2007. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran served on active duty from April 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, that granted service connection for prostate cancer, status post radical retropubic prostatectomy with bilateral pelvic lymph node dissection, and assigned a 0 percent rating (noncompensable) effective May 28, 2004. The veteran disagreed with the rating assigned. During the pending appeal, a July 2007 rating decision assigned a 20 percent rating effective from May 9, 2007. That grant does not represent a total grant of benefits sought on appeal, therefore this claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The veteran seeks an initial compensable rating prior to May 8, 2007, other than a period of a temporary total rating, and a rating in excess of 20 percent from May 9, 2007. According to the veteran's Form DD 214, Report of Transfer or Discharge, he served in Vietnam from January 1969 to January 1970. Private medical records show a new diagnosis of prostate cancer in June 2003 for which the veteran underwent a radical urethral prostatectomy in July 2003. He submitted a claim for service connection in May 2004. An October 2004 rating decision granted service connection on a presumptive basis for prostate cancer, status post radical retropubic prostatectomy with bilateral pelvic lymph node dissection, and assigned a 0 percent rating (noncompensable) effective May 28, 2004, which was later increased to a 20 percent rating effective May 9, 2007. In June 2005, based on clinical findings, the veteran was referred by his private urologist for further evaluation for adjuvant salvage radiation therapy. He completed a course of postoperative adjuvant irradiation. Further development is required prior to appellate review. The RO assigned the rating under the provisions of DC 7527 for evaluation of prostate gland injuries, infections, hypertrophy, and postoperative residuals. 38 C.F.R. § 4.115b, DC 7527. As the veteran has had radiation therapy, consideration of evaluation under DC 7528 for malignant neoplasms of the genitourinary system is also for consideration. Under that diagnostic code, a mandatory VA examination is to be provided at the expiration of six months following the cessation of a therapeutic procedure. The claim is remanded to afford the veteran a VA examination to determine the residuals of his service-connected prostate cancer, status post prostatectomy. 38 C.F.R. § 3.159(c)(4) (2007). The veteran and his private oncologist have stated that the veteran is incontinent at times and requires absorbent pads daily. However, neither one stated the number of times the absorbent pads are changed. This information is needed for rating the disability as a voiding dysfunction disability. The veteran has also stated that he continues to have follow- up visits with his urologist to monitor his condition. He should be requested to submit an authorization form so that VA can assist in obtaining his private medical records. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorization, request the veteran's private medical records concerning treatment and follow-up by his urologist or oncologist for his service-connected residuals of prostatectomy from October 2005. 2. Schedule the veteran for a VA genitourinary examination for the purpose of ascertaining the current severity of the veteran's service-connected residuals of prostate cancer. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The review should be indicated in the examination report. All residuals should be described. The examiner also should address whether the residuals attributable to the veteran's service-connected residuals of prostate cancer include (a) voiding dysfunction to include urine leakage, frequency, or obstructed voiding; or (b) urinary tract infection; or (c) renal dysfunction. To the extent the veteran has urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of absorbent materials the examiner should state the number of times per day the absorbent materials must be changed. To the extent the veteran has urinary frequency, the examiner should state the daytime voiding interval and the number of times the veteran awakes to void at night. 3. Then, readjudicate the veteran's claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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. 2007). _________________________________________________ HARVEY P. ROBERTS 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) (2007).