Citation Nr: 1331528 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 06-32 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable disability rating for residuals of prostate cancer, status post prostatectomy, prior to April 14, 2008 and to a rating higher than 60 percent thereafter. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In April 2006, the RO denied entitlement to service connection for residuals of prostate cancer and the Veteran appealed. In a subsequent January 2008 rating decision, the RO granted entitlement to service connection and assigned a non-compensable rating which the Veteran timely appealed. The Veteran testified before the below-signed Veterans Law Judge in June 2008 in Philadelphia. A copy of the transcript from that hearing has been associated with the record. In a November 2008 rating action, the RO increased the Veteran's disability evaluation to 60 percent effective April 14, 2008. However, the Veteran has indicated the 60 percent disability rating did not satisfy his appeal. The issue of the entitlement to an increased initial disability rating remains on appeal before the Board. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993). In February 2009, March 2011, and October 2012, the Board remanded this claim for additional development. The claim has been returned to the Board and is ready for further review. 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 A remand is necessary in order to afford the Veteran a current VA examination before the claim for an increased rating is adjudicated as well as for a TDIU. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran's residuals of prostate cancer, status post prostatectomy, are rated pursuant to Diagnostic Code 7527. That code section provides that residuals are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran is currently in receipt of a 60 percent evaluation for residuals of his prostate cancer. This is the maximum rating available based on voiding dysfunction, urinary frequency, obstructed voiding, and urinary tract infection criteria. Higher ratings of 80 percent and 100 percent are only available based on renal dysfunction. With respect to renal dysfunction, an 80 percent rating is warranted when there are persistent edema and albuminuria with BUN of 40 to 80mg%; or, a creatinine of 4 to 8mg%; or, generalized poor health, characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent schedular rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. While a medical opinion was rendered in this claim in December 2012, the most recent VA examination was performed in 2007. No findings of renal dysfunction were rendered. While blood work of February 2012 was noted in December 2012, the examiner has not discussed the state of the Veteran's health, i.e., generalized poor health, characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. In order to fairly assess the severity of the Veteran's disability, the Board finds that an additional VA examination is necessary. The Court (CAVC) has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities and is part of a claim for increased compensation. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011). In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a) . But there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). And as the Court explained in Rice, if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. As the Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be considered substantially gainful versus just marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). When this case was previously remanded, the Board mandated that an opinion regarding the employability of the Veteran be obtained. However, the December 2012 VA clinician that did not address this request. A remand of this claim is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, an examination and additional medical opinion are needed to assist in determining the current manifestations of the Veteran's residuals of prostate cancer, status post prostatectomy as well as the impact that all of the Veteran's service-connected disabilities have on his employability. See Barr, 21 Vet. App. at 312 (2007); Stefl, 21 Vet. App. at 124; Bowling, 15 Vet. App. at 12. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The RO should have the Veteran scheduled for a VA examination(s) to address the current severity of his residuals of prostate cancer, status post prostatectomy and to determine the combined impact all of the Veteran's service-connected disorders on his ability to obtain or maintain employment consistent with his education and occupational experience. A complete list of currently service-connected disabilities must be provided to the examiner(s). The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner(s) in conjunction with the examination(s). If the examiner(s) does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner(s) must consider the Veteran's self-reported current and past history of disability and treatment, including self-reported symptoms. The prostate examiner should specifically state whether the Veteran suffers from the following manifestations of renal dysfunction: (a) persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, or (b) requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. The examiner must comment on the employability of the Veteran. All opinions should be supported by a clear rationale, with a discussion of the facts and medical principles involved. The examiner(s) must address the Veteran's service-connected disabilities and their impact on his capacity to obtain or retain employment and should elicit from the Veteran and should record for clinical purposes a full work and educational history, which must be compared with prior reported employment history. The examiner(s) must consider the Veteran's past education, past employment, and work experience. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner(s) must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to his service-connected disabilities (and any disabilities whose symptoms cannot be differentiated from those of the service-connected disabilities), acting in concert, consistent with his education and occupational experience. This opinion must be provided without consideration of the impact of his non-service-connected disabilities or his age on his ability to obtain or maintain employment. A complete rationale for all opinions expressed must be given. If the examiner(s) cannot provide the requested opinions without resorting to speculation, this must be so stated, and the examiner(s) must provide the reasons why an opinion would require speculation. The examiner(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran is hereby notified that it is his responsibility to report for any examination scheduled and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the examination, the RO should review the examination report to ensure it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing all indicated development, the RO then should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response. 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). _________________________________________________ DENNIS F. CHIAPETTA, JR. 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).