Citation Nr: 1319261 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-15 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating higher than 40 percent for service-connected urethral stricture and chronic prostatitis prior to January 19, 2006, and higher than 60 percent thereafter. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and T.V. ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty for training from July 1978 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for prostatitis, on the basis that new and material evidence had not been submitted to reopen the claim; and continued a 40 percent disability rating for urethral stricture. In September 2009, the Board reopened the Veteran's claim of service connection for prostatitis and granted the claim. The claims were then remanded for further evidentiary development, to include affording the Veteran for a VA examination in conjunction with his increased rating claim. In a rating decision dated in February 2010, the RO recharacterized the issue as entitlement to an increased rating for urethral stricture and chronic prostatitis and granted a 60 percent disability rating for service-connected urethral stricture and chronic prostatitis, effective November 2009. In December 2010, the Board granted a disability rating of 60 percent prior to November 2009 but denied a rating higher than 60 percent thereafter. In a December 2010 rating decision, the 60 percent evaluation was effectuated as of January 19, 2006. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The record contains a Court Order, dated June 2011, which remanded this appeal pursuant to the terms of a Joint Motion for Remand wherein the Veteran's attorney and the VA Office of General Counsel agreed to remand the claim to the Board for adjudication consistent with the terms therein. The Board subsequently remanded this case for additional development in October 2011. Pursuant to a hearing request, a video conference hearing was held before the undersigned Veterans Law Judge in October 2012. For reasons described below, and in view of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that this appeal encompasses the noted TDIU issue as well. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND At the outset, the Board regrets the need for an additional remand in this case, given the lengthy pendency of this appeal. Nevertheless, contentions made at the Veteran's October 2012 hearing signify that additional development is required. As currently constituted, the Veteran's claims file includes VA treatment records requested most recently in July 2010, and a VA genitourinary examination report from November 2009. The most recent remand encompassed the obtaining of a VA medical opinion and addendum, but no examination was performed. In other words, it has been well over three years since the Veteran underwent a VA genitourinary or other examination in conjunction with this appeal. During his October 2012 hearing, the Veteran reported going to the bathroom more frequently, "maybe every five minutes to the bathroom." He noted wearing pads every two to three hours. This suggests a notable worsening since the November 2009 VA examination, when he reported nocturia of six to seven times and going to the bathroom seven to eight times during the day. At that time, he also reported wearing six pads per day. The Veteran also reported treatment "at the present moment" for his genitourinary problems at several VA facilities. The hearing transcript indicates VA treatment in "Musserburg"; this appears to be a transcription error, as there is a VA medical center (VAMC) in Murfreesboro, Tennessee, the location of records obtained in July 2010. The Veteran also noted that he sometimes would go to the Nashville VAMC. Accordingly, records from these facilities dated since July 2010 should be requested and, if available, added to the claims file. Given the Veteran's complaints of worsening of his genitourinary disorder and his current treatment, in light of the presently assigned 60 percent rating, the Board finds that this is a case where referral for consideration of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is warranted. Such action must precede further adjudication of the underlying increased rating claim. Finally, the Veteran indicated during his hearing that he had not worked since 1993 and asserted that his disability affected his ability to work. The Board finds that this testimony raises a TDIU claim, which per Rice is part of the underlying appeal. The Veteran also furnished a November 2012 report from a vocational consultant to this effect. That said, this issue is inextricably intertwined with the increased rating issue, as the determination of that claim may affect the TDIU claim, and further adjudication of the TDIU claim should not be made until the Veteran receives 38 C.F.R. § 3.159(b) notification on the claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be furnished with a 38 C.F.R. § 3.159(b) notice letter on the issue of TDIU and given an appropriate period of time in which to respond. All development arising from his response to this letter, if any (e.g., additional requests for records) must be made before the examination specified in paragraph 3 of this remand is conducted. 2. The VAMCs in Nashville and Murfreesboro must be contacted, and all records dated since July 2010 must be requested. All records obtained pursuant to this request must be added to the claims file. If the search for such records has negative results, this must be documented in the claims file. 3. The Veteran must then be afforded a VA examination, conducted by an examiner who has reviewed the claims file (including any relevant records on Virtual VA). The examiner must address all symptoms of voiding dysfunction, including frequency of urination, any obstruction or other voiding dysfunction, urinary tract infections, and usage of absorbent materials. The examiner must further address whether the service-connected urethral stricture and chronic prostatitis, in combination with the service-connected erectile dysfunction, render the Veteran unable to secure or follow a substantially gainful occupation. This opinion must address the findings included in the aforementioned November 2012 vocational consultant's report. All opinions must be supported by a complete rationale in a typewritten report. 4. Then, the Veteran's increased rating claim must be referred to the VA Undersecretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extra-schedular rating is warranted for the service-connected urethral stricture and chronic prostatitis pursuant to 38 C.F.R. § 3.321(b)(1). All responses in this regard must be fully documented in the claims file. 5. Then, the claim for increased ratings for the service-connected urethral stricture and chronic prostatitis must be readjudicated, along with the TDIU claim. 38 C.F.R. § 3.321(b)(1) must be addressed in this readjudication. If the determination of either claim remains unfavorable, the Veteran must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ C. TRUEBA 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).