Citation Nr: 1118331 Decision Date: 05/12/11 Archive Date: 05/17/11 DOCKET NO. 10-03 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Whether the reduction from a disability rating of 100 percent to a disability rating of 40 percent for prostate adenocarcinoma, status post radical retropubic prostatectomy, was proper. ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service connection for prostate adenocarcinoma, status post radical retropubic prostatectomy, was granted in January 2008 rating decision and an effective date of July 25, 2007 was assigned. The Veteran was provided with notice of this rating decision in January 2008. The Board notes that the Veteran submitted a Notice of Disagreement (NOD) in August 2009 with regard to the effective date assigned in the January 2008 rating decision. In a September 2009 letter to the Veteran, the RO indicated that the NOD on the issue of earlier effective date for prostate adenocarcinoma could not be accepted because the appeal period expired. In a September 2010 letter to the Veteran, the RO asked the Veteran to disregard the September 2009 letter stating that the Veteran's NOD was not timely. In that letter, it was indicated that "You had until October 28, 2009 to appeal the rating decision dated October 21, 2009, with notification letter dated October 28, 2009." It was further noted that "Our letter stated the decision was on August 11, 2008, not October 21, 2009." The October 21, 2008 rating action addressed the reduction of the rating assigned for the Veteran's prostate disorder; the October 28, 2008 letter to the Veteran was notice of this action. The only issue developed for appellate consideration is that stated on the title page. The RO should provide the Veteran with clarification regarding the issues on appeal. Moreover, the Veteran has alleged clear and unmistakable error (CUE) with the effective date issued for service connection for prostate adenocarcinoma, status post radical retropubic prostatectomy. Under the circumstances, these matters are referred to the RO for appropriate 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 Service connection was established for prostate adenocarcinoma, status post radical retropubic prostatectomy, in a January 2008 rating decision. A 100 percent rating was assigned under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528. This diagnostic code specifies that active malignant neoplasms of the genitourinary system are to be rated as 100 percent disabling. Following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. In cases of renal dysfunction, a 60 percent evaluation is in order for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101. An 80 percent evaluation is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent evaluation contemplates cases requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Cases of voiding dysfunction are rated as either urine leakage, frequency, or obstructed voiding. With continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 40 percent evaluation is in order for a disability requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent evaluation contemplates the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Here, an examination was conducted in July 2008 and the rating was reduced to 40 percent, effective January 1, 2009. At the July 2008 VA examination, the Veteran reported urinary dribbling, but no gross incontinence. He stated that, over the previous several months, he used four diaper pads per day. He denied kidney disease. He underwent a physical examination of the genitourinary system. Although the Veteran denied kidney disease, the physical examination did not adequately address renal dysfunction. For example, the July 2008 VA examination report does not contain findings of BUN or creatinine levels. The July 2008 VA examination is inadequate for rating purposes and the Veteran must be provided an adequate examination in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA decides to afford the Veteran an examination, even if not statutorily required to do so, VA must ensure that the examination is an adequate one). As VA has not fulfilled its duty to assist in this matter, the Board must remand the matter involving the Veteran's prostate adenocarcinoma, status post radical retropubic prostatectomy, so that VA can provide an adequate examination. The record reflects that following transfer of the case to the Board, the Veteran submitted additional evidence, including undated VA outpatient treatment records regarding the Veteran's BUN and creatinine levels. The Board notes that the Veteran did not submit a waiver of RO review of the additional evidence. Under the circumstances, this matter must be returned to the RO for review of the additional evidence. 38 C.F.R. § 20.1304(c). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the severity of disability resulting from the Veteran's service connected prostate adenocarcinoma, status post radical retropubic prostatectomy. This examination must include findings related to residuals as voiding dysfunction and renal dysfunction, including BUN and creatinine levels. The claims file and a copy of this remand must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate the examination report as to whether he or she did review the claims file. 2. Upon completion of the above, readjudicate the issue of whether the reduction from a disability rating of 100 percent to a disability rating of 40 percent for prostate adenocarcinoma, status post radical retropubic prostatectomy, was proper. If that benefit sought on appeal remains denied, the appellant should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the 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. 2010). _________________________________________________ V. L. JORDAN 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) (2010).