Citation Nr: 1329088 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 12-16 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial compensable rating for service-connected residuals, prostate cancer, status post radical prostatectomy. 2. Entitlement to an initial compensable rating for service-connected erectile dysfunction. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of entitlement to service-connection for depression, secondary to service-connected erectile dysfunction, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See VA-Form 9, received September 2012. Therefore, the Board does not have jurisdiction over it, 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 By a November 2011 rating decision, the RO granted service connection for the Veteran's residuals of prostate cancer, status post radical prostatectomy, assigning a noncompensable disability rating effective April 26, 2010. On appeal, the Veteran asserts that his symptoms are more severe than represented by the evaluations assigned, and specifically reports urinary incontinence and sexual dysfunction. Because of this, he asserts that a higher initial rating is warranted. A remand is necessary to provide the Veteran with a new VA examination. In August 2011, the Veteran was given a VA examination for his claim of entitlement to service connection for prostate cancer. In the course of that examination, the examiner noted that the Veteran did not have a voiding dysfunction. As a result, the examiner did not complete the portions of the Disability Benefits Questionnaire addressing whether the Veteran has urinary leakage and, if so, of what severity. The examination report does not state whether the examiner specifically asked the Veteran if he had any incontinence issues as a result of the residuals of his prostate cancer. In his December 2011 Notice of Disagreement, the Veteran noted that control over his urinary incontinence "was mostly regained;" however, he did not indicate that the incontinence had ceased. In his September 2012 formal appeal to the Board, the Veteran specifically stated that he experiences urinary incontinence "during strenuous lifting," "[o]ften while standing, from sitting position to quickly," and "[w]hen riding a bike for exercise." Lastly, a review of the claims file reflects that the Veteran filed a timely December 2011 NOD with respect to the November 2011 rating decision granting a noncompensable rating for his service-connected erectile dysfunction. However, no subsequent action was taken in response to the Veteran's NOD, and the RO did not supply the Veteran with a Statement of the Case (SOC) in reference to his erectile-dysfunction claim. Where an NOD has been timely filed with regard to an issue, and an SOC has not been issued, the Board must remand the claim to the AOJ so that an SOC may be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, on remand, the AOJ must issue an SOC as to the Veteran's claim of entitlement to an initial compensable rating for his service-connected erectile dysfunction so as to provide the Veteran the opportunity to perfect an appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 19.26 (2012); see Manlincon, 12 Vet. App. at 238. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his residuals of prostate cancer, status post radical prostatectomy. The claims file, including a copy of this Remand, should be provided to the examiner for review. While review of the entire file is required, particular attention is invited to the December 2011 Notice of Disagreement and September 2012 VA Form-9 in which the Veteran describes his urinary incontinence post radical prostatectomy surgery. The examiner must elicit from the Veteran a complete history and obtain details of all current residuals of the Veteran's prostate cancer, status post radical prostatectomy. 2. Issue a Statement of the Case regarding the issue of entitlement to an initial compensable disability rating for the Veteran's service-connected erectile dysfunction and advise the Veteran of the procedural requirements to continue an appeal of that issue. If, and only if, a substantive appeal is timely filed, the issue should be certified to the Board. 3. Review the claims file to ensure that all of the above development is completed, and arrange for any additional development which logically flows from it. Then, readjudicate the claim(s) on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters 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).