Citation Nr: 1319227 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 10-30 819 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for headaches, to include as due to herbicide exposure. 2. Entitlement to service connection for glioma of the right side of the brain, to include as due to herbicide exposure. 3. Entitlement to service connection for skin rash, to include as due to herbicide exposure. 4. Entitlement to service connection for testicular cancer, to include as due to herbicide exposure. 5. Entitlement to an effective date earlier than August 21, 2008, for the award of service connection for prostate cancer. 6. Entitlement to an effective date earlier than August 21, 2008, for the award of erectile dysfunction status post radical prostatectomy, and for special monthly compensation based on loss of use of a creative organ. 7. Entitlement to an rating in excess of 10 percent for prostate cancer, from November 1, 2008, forward. 8. Entitlement to an initial rating in excess of 50 percent for major depressive disorder with posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to August 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO denied the benefits sought on appeal relating to all issues except the psychiatric disability. The Veteran filed a notice of disagreement in May 2009. A statement of the case was issued in June 2010 and the Veteran perfected his appeal with the filing of a substantive appeal in July 2010. The appeal also arose from a September 2009 rating action in which the RO granted service connection for major depressive disorder, and assigned an initial 50 percent rating effective from August 21, 2008. The Veteran filed a notice of disagreement in July 2010. A statement of the case was issued in August 2010 and the Veteran perfected his appeal with the filing of a substantive appeal in September 2010. In June 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. As reflected in the Board hearing transcript, and as documented in a June 2011 written statement, the Veteran has elected to withdraw from appeal four service connection claims which had been denied in a March 2009 rating action from appellate review. Accordingly, those claims will be formally dismissed below.. A May 2013 review of the Virtual VA paperless claims processing system did not reveal any additional documents pertinent to the present appeal. The Board's disposition of the claims for service connection for headaches, glioma of the right side of the brain, skin rash, and testicular cancer, as well as the decision on the claims for earlier effective dates, are set forth below. The claims for a rating in excess of 10 percent for prostate cancer, from November 1, 2008, forward; and for an initial rating in excess of 50 percent for major depressive disorder with PTSD, are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. In June 2011, prior to the promulgation of a decision by the Board, the Veteran withdrew from appellate consideration service connection claims for headaches, glioma of the right side of the brain, skin rash and testicular cancer. 2. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 3. On August 21, 2008, the RO received the Veteran's original service connection claim for prostate cancer. 4. In a March 2009 rating action, the RO granted service connection for prostate cancer, erectile dysfunction and loss of use of a creative organ, all effective from August 21, 2008. 5. The claims file includes no statement or communication from the Veteran, prior to August 21, 2008, that constitutes a pending service connection claim for prostate cancer. 6. Prostate cancer was initially diagnosed in February 2008; there is no medical indication that the Veteran had prostate cancer between the November 7, 1996, date of a relevant change in law adding prostate cancer as a condition presumptively associated with herbicide exposure during Vietnam, and February 2008. 7. The effective date for the award of service connection for prostate cancer is August 21, 2008; the grant of service connection for erectile dysfunction and the award of special monthly compensation based on loss of use of a creative organ were both premised on the grant of service connection for prostate cancer; accordingly, the effective dates assigned for these conditions can be no earlier than August 21, 2008. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal relating to a service connection claim for headaches have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal relating to a service connection claim for glioma of the right side of the brain have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 3. The criteria for withdrawal of a substantive appeal relating to a service connection claim for skin rash have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 4. The criteria for withdrawal of a substantive appeal relating to a service connection claim for testicular cancer have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 5. An effective date prior to August 21, 2008, is not warranted for the award of service connection for prostate cancer. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 3.816 (2012). 6. An effective date earlier than August 21, 2008, is not warranted for the award of service connection for erectile dysfunction secondary to service-connected prostate cancer. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2012). 7. An effective date earlier than August 21, 2008, is not warranted for the award of special monthly compensation based on loss of use of a creative organ. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal of Service Connection Claims Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a rating action issued in March 2009, the RO denied service connection claims for headaches, glioma of the right side of the brain, skin rash and testicular cancer. A timely NOD was filed in May 2009. A statement of the case was issued in June 2010 and the Veteran perfected his appeal with the filing of a substantive appeal in July 2010, giving appellate status to all four claims. In a June 2011 statement from the Veteran's representative, it was requested that the four aforementioned service connection claims be withdrawn from appellate consideration, per the Veteran's request. The same information was relayed and confirmed, as shown in the June 2011 Board hearing transcript. Therefore, no allegations of errors of fact or law remain for appellate consideration with respect to the service connection claims for headaches, glioma of the right side of the brain, skin rash and testicular cancer. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the aforementioned claims and they must be dismissed. II. Due Process Considerations for Claims Decided The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The Board notes that, in regard to the Veteran's earlier effective date claims, the Veteran and his representative have been notified of the reasons for the denial of the claims, and have been afforded opportunity to present evidence and argument with respect to the claims. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran. As will be explained below, the claims lack legal merit. As the law, and not the facts, is dispositive of the claims, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). III. Effective Date Claims The Veteran seeks an effective date prior to August 21, 2008 for the award of service connection for both prostate cancer and erectile dysfunction status post radical prostatectomy, and for special monthly compensation based on loss of use of a creative organ. Specifically, he maintains that an effective date of February 15, 2008 is warranted for the award of service connection for prostate cancer, representing the date of diagnosis; and that April 14, 2008 should be the effective date for service connection and special monthly compensation relating to his erectile dysfunction/loss of use of a creative organ, as this date represents the date of his radical prostatectomy surgery. A brief review of the evidence reflects that the Veteran filed a claim for prostate cancer on August 21, 2008. Private medical evidence reveals that an MRI study of the brain dated on February 15, 2008 revealed low grade infiltrating glioma. A surgical pathology report dated of February 19, 2008 revealed that a biopsy of samples from the prostate revealed prostatic adenocarcinoma. Also on file is a February 25, 2008 medical statement of Dr. D.A.K. The statement references a report made by the Veteran to the effect that a recent biopsy of the prostate had revealed evidence of carcinoma in one or two of the samples. A private surgical pathology report of April 14, 2008 confirms the presence of a tumor confined to the prostate. The Veteran was admitted for private hospitalization on April 14, 2008; and on April 15, 2008, underwent a robotically-assisted laparoscopic prostatectomy and right lymph node dissection. In a March 2009 rating decision, service connection was established for prostate cancer, for which an initial 100 percent evaluation was assigned effective from August 21, 2008; followed by the assignment of a 10 percent evaluation effective from November 1, 2008. Service connection was also established for erectile dysfunction, status post radical prostatectomy secondary to prostate cancer, for which an initial 10 percent evaluation was assigned effective from August 21, 2008. Entitlement to special monthly compensation based on loss of use of a creative organ was also established effective from August 21, 2008. During the June 2011 Board hearing, the Veteran testified that he did not file a claim just after his prostate cancer diagnosis and April 2008 surgery, due to the depression, preparation, and treatment associated with his condition. He indicated that he thought that the date of the prostate cancer surgery in mid-April 2008, should be the applicable effective date in this case. Initially, the Board notes that the assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400(2)(i) (direct service connection). For presumptive service connection purposes, the effective date is the date entitlement arose, if the claim is received within one year after separation from active duty; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(2)(ii) (presumptive service connection). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). A. Prostate Cancer As an initial matter, the Board finds that a thorough review of the claims file reveals no communications regarding service connection for prostate cancer prior to the service connection claim received on August 21, 2008. The Board acknowledges that VA must liberally construe all documents filed by a claimant. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991). In this case, there simply are no documents that might be construed, even in the broadest sense, as a service connection claim for prostate cancer, nor does the Veteran so maintain. The Veteran maintains that an earlier effective date of February 2008 is warranted as that was the date that prostate cancer was first diagnosed. The Court of Appeals for Veterans Claims (Court) has held, however, that the mere existence of medical evidence of a diagnosis and treatment does not establish an intent to seek service connection or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid. Furthermore, an effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 I. I. 377, 382 (1999). Thus, although the Veteran was diagnosed to have prostate cancer in February 2008, an effective date cannot be awarded until August 21, 2008, as this is the date the Veteran actually filed his application upon which service connection was granted. As noted, a claim for service connection must indicate an intent to apply for that benefit. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a), 3.155(a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). While evidence contained in treatment records may constitute an informal claim in certain circumstances under 38 C.F.R. § 3.157(b), such provision explicitly applies only to cases where service connection has already been established. See MacPhee v. Nicholson, 459 F.3d 1323, 1325-26 (Fed. Cir. 2006); Lalonde, supra. Consequently, simply because the Veteran was diagnosed and treated in February 2008 for his prostate cancer, that does not mean that a claim for compensation benefits was made. The exception would be if any treatment records indicate an intent to file a claim for compensation. Here, the Board finds that none of the treatment records dated prior to August 21, 2008 indicates an intent by the Veteran that he was seeking service-connected compensation for his prostate cancer. In the March 2009 rating decision, the RO granted service connection for prostate cancer based on the Veteran's presumed exposure to herbicides during active service in Vietnam. See 38 C.F.R. §§ 3.307(a)(6). 3.309(e). With respect to the assignment of effective dates for awards of service connection for diseases presumed to have been caused by herbicide exposure, a limited exception to the statutory provisions governing the assignment of effective dates was created by the Nehmer line of cases: the final Stipulation and Order in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I), the specific guidance describing the Stipulation and Order setting forth VA's ongoing responsibilities for further rulemaking and disability payments to class members provided in Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II), the class action Order in Nehmer v. United States Veterans Administration, No. CV-86-6160 TEH (N.D. Cal., Dec. 12, 2000), and Nehmer et. al. v. Veterans Administration of the Government of the United States, 284 F. 3d 1158 (9th Cir. 2002) (Nehmer III). In August 2003, VA published regulations to implement these orders. A Nehmer class member is defined as a veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). The term "covered herbicide disease" includes prostate cancer. 38 C.F.R. § 3.816(b)(2) (viii). If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose. 38 C.F.R. § 3.816(c)(1). If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(2). If the requirements of (c)(1) or (c)(2) are not met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114, 3.400. 38 C.F.R. § 3.816(c)(4). Where compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where compensation is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a). If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). Effective in November 7, 1996, VA added prostate cancer to the list of enumerated diseases recognized as having an association with exposure to herbicides in the Republic of Vietnam set forth in 38 C.F.R. § 3.309(e); see 61 Fed. Reg. 57586 (1996). As discussed above, the Veteran did not file a claim for service connection for prostate cancer until August 21 2008, and there was no prior denial of service connection for prostate cancer. Since there was no prior denial of service connection for prostate cancer and the Veteran's claim for service connection was received after prostate cancer was added to the list of presumptive diseases, the retroactive provisions of 38 C.F.R. § 3.816 are not applicable to this case. The Board has also considered whether, pursuant to 38 C.F.R. § 3.114(a), the Veteran may, possibly, be entitled to an effective date of one year earlier than the date the Veteran filed his claim for service connection for prostate cancer, if the evidence of record establishes that (1) he experienced symptoms of prostate cancer prior to his diagnosis, and (2) prostate cancer existed continuously from that date until the time he filed his claim for that condition. The pertinent evidence of record, however, simply does not indicate that the Veteran had prostate cancer until February 2008, well after the November 1996 change in the law. Accordingly, as the Veteran did not meet the criteria for service connection for prostate cancer on the effective date of the liberalizing regulation, an earlier effective date for the award of service connection pursuant to 38 C.F.R. § 3.114(a) is also not warranted. As the Veteran's claim for service connection for his prostate cancer was not filed until August 21, 2008, more than one year after his discharge from active duty, as a matter of law the effective date would be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In the present case, the later date is the date the Veteran filed his claim for compensation (i.e., August 21, 2008). There are no provisions in the law for awarding an earlier effective date in the present circumstances. The Board is sympathetic to the Veteran; however, the law prohibits the assignment of an effective date earlier than August 21, 2008, in the present case. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. Consequently, as the Board has no authority to award an effective date earlier than August 21, 2008, the claim for an earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. Erectile Dysfunction and Special Monthly Compensation In the March 2009 rating action, the RO also granted service connection for erectile dysfunction, secondary to service-connected prostate cancer and awarded special monthly compensation based on loss of use of a creative organ, effective from August 21, 2008, the date of the original service connection claim for prostate cancer. The Veteran maintains that an effective date of April 14, 2008 should be awarded, because that was the day he was admitted for hospitalization, following which on April 15, 2008, he underwent a robotically-assisted laparoscopic prostatectomy and right lymph node dissection. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In finding that an earlier effective date is not warranted for service connection for prostate cancer, it follows that earlier effective dates for the awards of service connection for erectile dysfunction secondary to service-connected prostate cancer and the for special monthly compensation are also not warranted. These awards were based upon the same service connection claim for prostate cancer, received on August 21, 2008. Because erectile dysfunction is awarded secondary to a service-connected disability, and special monthly compensation is awarded as a result of the effects of a service-connected disability, the effective date of the grant of a secondary service connection claim and special monthly compensation cannot predate the effective date of the award of the service-connected disability on which the secondary service connection claim and special monthly compensation award are based. See 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the grant of service connection for erectile dysfunction secondary to service-connected prostate cancer, or the grant of special monthly compensation based on loss of use of a creative organ, earlier than August 21, 2008, is assignable the claims must be denied. There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rather, based upon the undisputed facts of record, the claims must be denied as a matter of law. Sabonis, 6 Vet. App. at 426. ORDER The appeal relating to the service connection claim for headaches is dismissed. The appeal relating to the service connection claim for glioma of the right side of the brain is dismissed. The appeal relating to the service connection claim for skin rash is dismissed. The appeal relating to the service connection claim for testicular cancer is dismissed. An effective date earlier than August 21, 2008, for the award of service connection for prostate cancer, is denied. An effective date earlier than August 21, 2008, for the award of service connection for erectile dysfunction status post radical prostatectomy, is denied. An effective date earlier than August 21, 2008, for the award of special monthly compensation based on loss of use of a creative organ, is denied. REMAND The Board's review of the claims file reveals that additional RO action on the claims remaining on appeal is warranted. The Veteran is seeking entitlement to a rating in excess of 10 percent for prostate cancer, from November 1, 2008, forward; and to an initial rating in excess of 50 percent for major depressive disorder. Unfortunately, a remand is required in this case to address each of these issues. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c),(d) (2012). With respect to the prostate cancer residuals, the Veteran was last examined by VA in November 2008. At that time, the Veteran reported that he voided 6 to 10 times a day with nocturia twice a night. The condition was assigned a 10 percent evaluation effective from November 1, 2008, based on primary symptoms of urinary frequency. During his 2011 Board testimony, the Veteran stated that he urinated almost every 1 to 1 1/2 hours, and voided about 3 times a night. He also mentioned that he used pads provided by VA, estimating that he used about 5 a day. During the hearing, the Veteran's representative suggested that a new VA examination was warranted. The Veteran was last evaluated for his psychiatric disorder in May and July 2009. In May 2009 chronic combat-related PTSD was diagnosed, as was recurrent, moderate major depressive disorder, and a Global Assessment of Functioning (GAF) score of 49 was assigned. Similar findings were made in July 2009. In hearing testimony provided in 2011, the Veteran indicated that his symptoms included depression, anger and suicidal ideation. At the outset, the Board observes that it has been several years since the Veteran has undergone comprehensive VA examinations for his prostate and psychiatric disabilities. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination, as is essentially the case here with both the prostate and psychiatric disabilities. See 38 C.F.R. § 3.159 (2012); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). During his hearing, the Veteran provided credible testimony indicating that his conditions may have worsened since he was last evaluated by VA. Therefore, new and contemporaneous examinations are in order to determine the current manifestations and level of severity associated with the Veteran's service-connected prostate and psychiatric disabilities.. The Veteran is hereby advised that failure to report for any scheduled examination(s), without good cause, may result in denial of one or more claims. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file a copy of the notice of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the above-noted examinations, to ensure that all due process requirements are met, and the record before each examiner is complete, the RO undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. It appears that the Veteran receives his primary prostate and psychiatric treatment through VA, records dated from the Newington/West-Haven VAMC dated from October 2010, forward will be sought and added to the record, prior to readjudication of the claims. In this regard, the Board points out that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); See 38 U.S.C.A. § 5103A (b-c);38 C.F.R. § 3.159(c). The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. The RO's adjudication of each claim should include consideration of all evidence added to the record since the RO's last adjudication of the claims in June and August 2010. Accordingly, these matters are hereby REMANDED for the following action: 1 A specific search for any and all records of VA treatment, evaluation and hospitalization for the Veteran should be made from October 2010 forward; it appears that the Veteran has received VA treatment at the Newington/West Haven VAMC. Any records located in this regard should be associated with the claims file or electronic file, as appropriate. In the event that no VA records are available, this fact should be annotated for the record. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses are associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate medical professional, to assess the severity of the Veteran's prostate cancer residuals. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant records on Virtual VA (if the examiner does not have access) must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported 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-to include 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. The aforementioned manifestations should be discussed in terms of frequency, duration and severity of symptoms, and the Veteran's lay reports in this regard should be recorded and considered. All examination finding (and testing results, if any) should be set forth in a printed (typewritten) report. 5. After all records and/or responses are associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate medical professional, to assess the severity of the Veteran's depressive disorder with PTSD. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant records on Virtual VA (if the examiner does not have access) must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected psychiatric disability, in accordance with the rating criteria specified at 38 C.F.R. § 4.130, Diagnostic Code 9434. All pertinent lay information should be recorded and considered. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; delusions and/or hallucinations; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning GAF scale score that represents the level of impairment due to the Veteran's disability, and an explanation of what the score means. Based on review of the Veteran's documented medical history and assertions, the examiner should also indicate whether, at any time since the August 21, 2008 effective date of the award of service connection, the Veteran's service-connected psychiatric disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claims for a rating in excess of 10 percent for prostate cancer, from November 1, 2008, forward, as well as for an initial rating in excess of 50 percent for major depressive disorder with PTSD, in light of all pertinent evidence and legal authority. Readjudication of the claims should include consideration of all evidence added to the file since the June and August 2010 SOCs were issued, and should reflect consideration of whether staged ratings is warranted. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response before the claims file is returned to the Board. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs