Citation Nr: 1036044	
Decision Date: 09/23/10    Archive Date: 09/30/10

DOCKET NO.  08-06 330	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the 
Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a psychiatric disorder, 
claimed as secondary to service-connected adenocarcinoma of the 
prostate and erectile dysfunction.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the 
United States


ATTORNEY FOR THE BOARD

Amy M. Smith





INTRODUCTION

The Veteran served on active duty from July 1968 to August 1970, 
including service in the Republic of Vietnam.  He received the 
Combat Medical Badge.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a July 2007 rating action of the Department of 
Veterans Affairs Regional Office (RO) in San Juan, the 
Commonwealth of Puerto Rico.

This appeal was previously before the Board in March 2010, when 
it was remanded for additional development.  

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

Upon review of the claims file, the Board finds, unfortunately, 
that this matter must again be remanded for additional 
development and adjudication, even though such action will, 
regrettably, further delay a decision in this appeal.

When this case was last before the Board, it was remanded in 
order to obtain a VA examiner's opinion as to whether the 
Veteran's current psychiatric disorder is aggravated by his 
service-connected prostate cancer or erectile dysfunction.  In 
this regard, the Board notes that the record reflects psychiatric 
treatment dating back to 2001, and that the Veteran was diagnosed 
with prostate cancer in 2004 and underwent surgery for the 
disorder that same year.

In a March 2010 report, a VA examiner opined that the Veteran's 
current psychiatric disorder was "most likely permanently 
aggravated by his 
service-connected prostate cancer or erectile dysfunction."  In 
reaching this determination, the examiner noted VA treatment 
reports reflecting the Veteran's complaints of sadness and 
inability to cope associated with his erectile dysfunction.  
Importantly, however, the examiner did not delineate between the 
baseline level of severity of the Veteran's psychiatric disorder 
(i.e., the level of psychiatric impairment before the 
aggravation) and the level of impairment after the aggravation.  
See Allen v. Brown, 7 Vet. App. 439 (1995) (concluding that ". . 
. pursuant to § 1110 and § 3.310(a), when aggravation of a 
Veteran's 
nonservice-connected condition is proximately due to or the 
result of a 
service- connected condition, such Veteran shall be compensated 
for the degree of disability (but only that degree) over and 
above the degree of disability existing prior to the 
aggravation").  Moreover, 38 C.F.R. § 3.310(b) instructs that VA 
will not concede that a nonservice-connected disease or injury 
was aggravated by a service-connected disease or injury unless 
the baseline level of severity of the nonservice-connected 
disease or injury is established by medical evidence created 
before the onset of aggravation or by the earliest medical 
evidence created at any time between the onset of aggravation and 
the receipt of medical evidence establishing the current level of 
severity of the nonservice-connected disease or injury.  This 
should be accomplished.

Accordingly, the case is REMANDED for the following action:

1.	The RO should return the claims file to the 
March 2010 VA examiner.  If that examiner is 
not available, the claims file should be 
referred to another appropriate individual.  
The examiner should review the record in its 
entirety, including this REMAND, and should 
cite the medical evidence contained in the 
Veteran's claims file that supports the 
examiner's previous determination that the 
Veteran's current psychiatric disorder is 
aggravated by his service-connected prostate 
cancer or erectile dysfunction.  The examiner 
should also cite the baseline level of the 
Veteran's psychiatric disorder before the 
aggravation.  If it is not possible to 
provide the requested information, that 
should be explained.  

2.	When the development requested has been 
completed, the claim should be readjudicated.  
If the benefit sought on appeal remains 
denied, the Veteran and his representative 
should be provided with a supplemental 
statement of the case, and provided with an 
appropriate time for response.  The case 
should then be returned to the Board for 
further appellate 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 or by the 
United States Court of Appeals for Veterans Claims (Court) for 
additional development or other appropriate action must be 
handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 
(West Supp. 2009).



_________________________________________________
MICHAEL E. KILCOYNE
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 Court.  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) 
(2009).