Citation Nr: 1316929 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 12-30 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for prostate cancer. 2. Entitlement to an initial compensable rating for peripheral neuropathy of the right lower extremity. 3. Entitlement to an initial compensable rating for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy, including as a dental officer, from August 1960 to June 1992. This appeal to the Board of Veterans' Appeals (Board) is from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for Type II Diabetes Mellitus, prostate cancer, and for peripheral neuropathy of the right and left lower extremities. The Veteran appealed for higher initial disability ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals the initial rating for a disability, VA must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others; this will compensate the Veteran for this variance). However, in his October 2012 Substantive Appeal to the Board (on VA Form 9), the Veteran clarified that he is only appealing the initial ratings assigned for his prostate cancer and bilateral lower extremity peripheral neuropathy. So these are the only claims at issue in this appeal. Since, however, the claims require further development before being decided on appeal, the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). REMAND Additional development of the record is deemed warranted prior to issuance of a decision concerning these claims, namely, the scheduling of a VA Compensation examination to reassess the severity of these service-connected disabilities at issue. The Veteran last underwent relevant VA examination in August 2011, so nearly 2 years ago. In the time since, he repeatedly has alleged that examination was inadequate and, at best, incomplete, inasmuch as it appeared rushed and since he did not recall being asked pertinent questions about the severity of his disabilities being evaluated. The Board obviously has no means of determining exactly what transpired during that examination, and the mere passage of time since an otherwise adequate examination is not reason enough, alone, to require scheduling another examination merely as a matter of course. Nonetheless, the Board takes his allegations at face value to be competent and dispositive. So to afford proper consideration of his claims, and given the amount of time since that examination and suggestion of worsening conditions, a new examination should be scheduled reassessing the severity of his disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (wherein the Court held that, when a Veteran claims that a disability is worse than when originally rated (or last examined by VA), and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Also when readjudicating these claims, the RO/AMC must clarify the ratings assigned for the peripheral neuropathy of the right and left lower extremities. By most accounts this disability is rated 0-percent disabling, so noncompensable, but inexplicably the September 2012 Statement of the Case (SOC) at one point indicates that both the right and left lower extremity peripheral neuropathies were increased to 20 percent as of March 22, 2012. The RO/AMC therefore must indicate (through either a new rating decision or Supplemental SOC (SSOC)) whether this is indeed the case or otherwise erroneous or mistaken information. Accordingly, these claims are REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)\ 1. Schedule a VA examination reassessing the severity of the Veteran's prostate cancer. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should identify all present symptoms and manifestations attributable to the Veteran's service-connected prostate cancer, in accordance with the rating criteria specified at 38 C.F.R. § 4.119, Diagnostic Code 7528 - including indicating whether the cancer is still active versus in remission, and whether it involves any renal dysfunction, voiding dysfunction, urinary frequency, and/or obstructed voiding. 2. Also schedule a VA examination reassessing the severity of the peripheral neuropathy of the Veteran's right and left lower extremities. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should identify all present symptoms and manifestations attributable to this service-connected lower extremity peripheral neuropathy, in accordance with the rating criteria specified at 38 C.F.R. § 4.124a, Diagnostic Code 8521. In so doing, the VA examiner should initially identify the most affected nerve(s) of the right and left lower extremities (sciatic nerve, external popliteal nerve, etc.), and then further identify the severity of any and all neurological impairment (as incomplete paralysis, whether mild, moderate, moderately severe, or severe; or as complete paralysis). 3. Review the report of the examinations to ensure they are responsive to the questions posed. If not, take corrective action. 38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Then readjudicate these claims in light of this and all other additional evidence. In so doing, clarify whether the Veteran to date may have been awarded higher 20 percent ratings for his right and left lower extremity peripheral neuropathies as of March 22, 2012 (as the September 2012 SOC at one point indicates). If the claims continue to be denied, send him and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise him that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the denial of a claim, as it would require deciding the claim based on the existing evidence of record. 38 C.F.R. § 3.655. See also Turk v. Peake, 21 Vet. App. 565 (2008) (In an initial-rating claim, when the Veteran fails to report for an examination, the claim shall be rated on the evidence of record rather than summarily denied because an initial-rating claim is an original compensation claim under 38 C.F.R. § 3.655(b)). These claims 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. 2012). _________________________________________________ KEITH W. ALLEN 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) (2012).