Citation Nr: 1327181	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  10-07 843	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an initial rating in excess of 40 percent disabling for prostate cancer.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Juliano, Counsel

INTRODUCTION

The Veteran served on active duty from September 1964 to September 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Boston, Massachusetts.

The issue of entitlement to service connection for erectile dysfunction as secondary to service-connected prostate cancer has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ 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

The Veteran's prostate cancer is currently assigned a 40 percent disability rating under Diagnostic Code 7528, effective March 4, 2009.  See 38 C.F.R. § 4.115(b) (2012).  He seeks a higher initial rating.

The Veteran was last provided with a VA examination in April 2009.  In his September 2010 statement in lieu of Form 646, and in his July 2013 informal hearing presentation, the Veteran asserts that his prostate cancer residuals have worsened since the April 2009 VA examination, to include requiring the changing of his absorbent materials more than four times per day.  See 38 C.F.R. § 4.115(a) and (b) (Diagnostic Code 7528) (2012).  In light of the above, the Board finds that a remand is necessary to provide the Veteran with a new VA examination to ascertain the current severity of his service-connected prostate cancer.  See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991).

In addition, the Board notes that the claims file includes certain private treatment records from Leahy Hospital dated from July 2008 to January 2009.  No other treatment records have been associated with the claims file.  On remand, the Veteran should be provided with another opportunity to identify any outstanding private or VA treatment records relating to his claim.

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relating to his claim, and obtain any records so identified.  To that end, request from the Veteran Forms 21-4142 authorization, including so that any outstanding records from Leahy Hospital dated since January 2009 may be associated with the claims file.

2. After the above development has been completed, schedule the Veteran for a new genitourinary VA examination to determine the current severity of his service-connected prostate cancer residuals.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  The examiner should note that the claims file has been reviewed.  All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria.

Also, please ask the examiner to address the nature and etiology of any erectile dysfunction.

3. Then, readjudicate the Veteran's claim.  If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC).  After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review.

The appellant 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 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).



_________________________________________________
BETHANY L. BUCK
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).