Citation Nr: 1330079 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-15 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased disability evaluation for chronic prostatitis, currently rated as 40 percent disabling, to include on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). 2. Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michael Toomey, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from August 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2006 and June 2006 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. In the January 2006 rating determination, the RO increased the Veteran's disability evaluation for his chronic prostatitis from 20 to 30 percent. Thereafter, the Veteran appealed this decision. In a July 2008 rating determination, the RO increased the Veteran's disability evaluation for his chronic prostatitis from 30 to 40 percent effective the date of his request for an increased evaluation. As a result of these actions, the Board has listed the issue as such on the title page of this decision. The TDIU comes before the Board on appeal from the June 2006 rating determination of the Philadelphia RO. The issues were previously remanded by the Board in July 2010. The Veteran appeared at a videoconference hearing at the RO before a Veterans Law Judge (VLJ) in March 2010. The VLJ who conducted the hearing is no longer with the Board. The Veteran was offered the opportunity to present testimony before another VLJ. The Veteran appeared at a videoconference hearing at the RO before the undersigned VLJ in June 2013. Transcripts of both hearings are in the claims file. In March 2013, the Veteran raised the issues of entitlement to service connection for an acquired psychiatric disorder, a bladder disorder, and a cyst on the kidney, which have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issues, and they are REFERRED to the AOJ for appropriate action. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The U. S. Court of Appeals for Veterans Claims has held that where the Veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). The evidence suggests that the Veteran's prostatitis is worse than described during the most recent, October 2011 VA examination. The Veteran has alleged, and VA treatment records submitted following the hearing tend to show, increase in the extent of urinary leakage and a greater impact upon the Veteran's employment potential. Therefore, a new examination to obtain updated clinical findings is advisable. Moreover, a finding of entitlement to TDIU is dependent upon the impact of service connected disabilities upon the ability to secure and follow substantially gainful employment. The determination as to the assigned evaluation for the Veteran's service-connected prostatitis may therefore affect the Veteran's total disability rating pursuant to 38 C.F.R. § 4.16. It would then be premature to adjudicate the question of TDIU before the open question of appropriate evaluation is addressed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Schedule the Veteran for a VA genitourinary examination in order to determine the current severity of the service-connected prostatitis. The claims folder should be made available to the examiner for review in this regard. The examiner must discuss the need for absorbent materials due to leakage, to include the frequency with which any such materials require changing. Additionally, the examiner must discuss the impact of service-connected prostatitis residuals alone on the Veteran's occupational functioning. Does the condition markedly interfere with employment, or impact his ability to obtain or retain employment? 2. The Veteran should be advised in writing that it is his responsibility to report for any scheduled VA examination(s), to cooperate with the development of his claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any ordered examination, documentation must be obtained that shows that notice scheduling the examination was sent to his last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ WILLIAM H. DONNELLY Acting 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).