Citation Nr: 1328536 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 08-25 048 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an evaluation in excess of 60 percent for the service-connected adenocarcinoma of the prostate, effective on April 1, 2008, to include whether a separate rating is warranted for proctitis neuropathy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from July 1960 to August 1998. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a November 2008 decision by the RO that reduced the Veteran's evaluation for the service- connected adenocarcinoma of the prostate from 100 percent to 40 percent, effective on April 1, 2008. In a January 2010 decision, the RO increased the rating for the service-connected postoperative residuals of adenocarcinoma of the prostate to 60 percent, effective on April 1, 2008. In a February 2012 decision, the Board denied the Veteran's claim for increase. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in March 2013, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In a March 2013 Order, the Court vacated the Board's February 2012 decision and remanded the matter for readjudication in light of the Joint Motion. In the above-mentioned February 2012 decision, the Board also denied the restoration of a 100 percent rating for the postoperative residuals of adenocarcinoma of the prostate. Based on the request of the parties in the March 2013 Joint Motion, this issue was dismissed by the Court's March 2013 Order and is no longer in appellate status. The February 2012 decision also remanded the issue of entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU). That issue has not been recertified to the Board. The appeal is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In the March 2013 Joint Motion, the parties noted that the Veteran complained of having erectile dysfunction, voiding problems and difficulty standing for extended periods during a November 2009 VA fee-basis examination. It was noted that the examiner diagnosed the Veteran as suffering from residual sequelae from his prostate problem, to include urinary incontinence, erectile dysfunction, and proctitis neuropathy of the leg. In the Joint Motion, the parties stated that the RO failed "to consider the November 2009 nexus evidence which appear[ed] to link" the Veteran's proctitis neuropathy of the leg to his service-connected adenocarcinoma of the prostate. Accordingly, the RO should readjudicate the issue on appeal, to include whether a separate rating is warranted for proctitis neuropathy of the leg. In addition, the RO should have the scheduled for a VA examination to rate the current severity of his service- connected adenocarcinoma of the prostate. His last examination for this disability was conducted in November 2009 and is nearly four years old. The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2012). See Palczewski v. Nicholson, 21 Vet.App. 174, 181 (2007); Snuffer v. Gober, 10 Vet.App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for his service-connected prostate cancer. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the Veteran's VA claims folder. 2. The RO should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected adenocarcinoma of the prostate. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard. The examiner should elicit from the Veteran and record a complete medical history and identify detailed clinical findings to permit the evaluation of the service-connected adenocarcinoma of the prostate in terms of the applicable rating criteria. The examiner must specifically note any residuals of the Veteran's adenocarcinoma of the prostate and must discuss the November 2009 VA examiner's diagnosis of proctitis neuropathy and any other likely residuals of the prostate cancer or treatment therefor. 3. The RO should ensure compliance with the Board's February 2012 remand instructions that remanded the issue of entitlement to a TDIU rating beginning on and after April 1, 2008. 4. After completing all indicated development, the RO/ should readjudicate the Veteran's claim in light of all the evidence of record, including all evidence received since the issuance of the January 2010 SSOC. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 or by the Court 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). _________________________________________________ STEPHEN L. WILKINS 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).