Citation Nr: 1332514 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-25 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 60 percent for prostate cancer with impotency. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the VA Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran requested a hearing before a Veterans Law Judge, but withdrew his request for a hearing through written correspondence, dated in November 2011. The Veteran having withdrawn his hearing request, the Board will proceed to review the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. A statement of the case was issued in June 2009. Since then, additional treatment records dated through January 2011 were received at the RO and associated with the claims file. When additional evidence is received by the agency of original jurisdiction (AOJ) prior to the transfer of records to the Board, a supplemental statement of the case (SSOC) will be furnished unless the additional evidence received duplicates evidence previously of record or the additional evidence is not relevant to the issue on appeal. 38 C.F.R. § 19.37 (2012). Therefore, a remand is necessary for the issuance of an SSOC. The Veteran's representative has asserted a worsening of the Veteran's condition since the last VA examination in July 2008. See September 2013 brief. On remand, the Veteran should be afforded a new VA examination. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Although the Veteran is receiving the highest schedular rating available for voiding dysfunction, his representative asserts that referral of an extraschedular rating is warranted due to the Veteran being totally incontinent. See September 2013 brief. As such, on remand, the RO should consider whether referral of the claim to the Under Secretary for Benefits or the Director of Compensation and Pension for consideration of an extraschedular award pursuant to 38 C.F.R. § 3.321(b) is warranted. As a remand is necessary, any additional treatment records identified by the Veteran should be obtained. The Veteran receives VA treatment through the VA Medical Center (VAMC) in Durham, North Carolina and has also received private treatment. On remand, records of any VA and private treatment that the Veteran has recently received should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service treatment that the Veteran has recently received. The Board is particularly interested in records of treatment that the Veteran may have received from the Durham VAMC as well as from private physicians. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Accord the Veteran an appropriate VA examination to determine the current level of severity of his service-connected prostate cancer with impotence. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. All pertinent manifestations of the service-connected prostate cancer with impotence should be annotated in the examination report. The examiner should address any current residuals of prostate cancer. The examiner should specifically address whether there has been local reoccurrence or metastasis of the Veteran's prostate cancer. If examiner finds that there has not been any reoccurrence or metastasis, indicate whether the Veteran's residuals of prostate cancer are manifested by urinary leakage, and if so, whether he needs to wear absorbent materials and the frequency they must be changed. The examiner should discuss the Veteran's daytime and nighttime urinary frequency and whether the residuals of prostate cancer result in obstructive voiding, and if so, to what extent. The examiner should also specify whether the disability is manifested by renal dysfunction. If so, the examiner must indicate whether the Veteran exhibits the following: a) Persistent edema and albuminuria with BUN 40 to 80 mg%, or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; or, b) Requiring dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Also, the examiner should discuss the extent of any affect on daily activities, including work and physical activity due to the service-connected prostate disability. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issue on appeal. The RO should determine whether referral of the claim to the Under Secretary for Benefits or the Director of Compensation and Pension for consideration of an extraschedular award pursuant to 38 C.F.R. § 3.321(b) is warranted. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).