Citation Nr: 1333846 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 04-41 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for a skin disability. 2. Entitlement to higher ratings for a prostate disability currently rated as noncompensable prior to October 17, 2006; 10 percent from October 17, 2006 to October 16, 2012; and 40 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from August 1975 to September 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision issued by the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for a rating in excess of 10 percent for a skin disability; and for a compensable rating for a prostate disability. In May 2005, a Travel Board hearing was held before a Veterans Law Judge who has since retired from the Board. A transcript of that hearing is associated with the claims file. In October 2007, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of that hearing is also associated with the claims file. In May 2006, January 2008, September 2010, and September 2012, these matters were remanded for further development. In an August 2011 rating decision, the RO assigned a higher 10 percent rating for the Veteran's prostate disability, effective from October 17, 2006. In a January 2013 rating decision, the RO assigned a higher 40 percent rating effective October 16, 2012, for the Veteran's service-connected prostate disability. As the ratings assigned to the Veteran's service-connected prostate disability are not the maximum ratings available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The issue for consideration has been listed accordingly on the Title Page. A review of the Virtual VA paperless claims processing system reveals only the additional, pertinent evidence of the representative's Appellant's Brief. The issue of whether the April 2004 rating decision that denied an increase for the Veteran's service-connected skin disability contained clear and unmistakable error (CUE) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. See May 2004 statement in Volume 1 of the claims file. The issue of entitlement to service connection for erectile dysfunction as secondary to service-connected prostate disability has also been raised by the record (see October 2012 VA examination report) and it too is referred to the AOJ for appropriate action. The issue of entitlement to a rating in excess of 10 percent for a skin disability is addressed in the REMAND portion of the decision below and is REMANDED once again to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. At no time prior to October 17, 2006 has the Veteran's service-connected prostate disability manifest by voiding dysfunction; or urinary tract infections requiring long-term drug therapy, one to two hospitalizations per year and/or intermittent intensive management. 2. From October 17, 2006 to October 16, 2012, the Veteran's service-connected prostate disability has manifested predominately by voiding dysfunction with daytime voiding intervals between two and three hours and night time voiding two to three times per night. 3. Since October 16, 2012, the Veteran's service-connected prostate disability has been manifested predominantly by voiding dysfunction with a daytime voiding interval of once or twice per hour and night time voiding five or more times, and urine leakage requiring absorbent material be changed less than two times per day; there is no evidence of renal dysfunction or urine leakage or incontinence so severe as to require the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. CONCLUSIONS OF LAW 1. Prior to October 17, 2006, the criteria for a compensable rating for the Veteran's prostate disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.1, 4.115a, 4.115b, Diagnostic Code 7527 (2013). 2. From October 17, 2006 to October 16, 2012, the criteria for a rating higher than 10 percent for the Veteran's prostate disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.1, 4.115a, 4.115b, Diagnostic Code 7527 (2013). 3. From October 16, 2012, the criteria for a rating higher than 40 percent for the Veteran's prostate disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.1, 4.115a, 4.115b, Diagnostic Code 7527 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in May 2006 and September 2006 that fully addressed all notice elements. The May 2006 letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the May 2006 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. While the notice was not provided prior to the initial adjudication of this matter. The matter was readjudicated after all critical notice was received. See March 2007, March 2010, August 2011, and January 2013 supplemental statements of the case. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file, to include the Veteran's electronic file, contains the Veteran's available service treatment records, post-service reports of VA, and private treatment and examination. Moreover, the Veteran's statements, to include testimony taken at the May 2005 and October 2007 Board hearings, in support of the claim are of record. The Board has carefully reviewed such statements and concludes that there is no available outstanding evidence pertinent to the claims decided below that must be obtained. Accordingly, the Board finds that all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. Additionally, the Veteran was afforded VA examinations in February 2004, October 2006, and pursuant to the September 2010 Board remand, in October and November 2010; and pursuant to the September 2012 Board remand, in October 2012 to evaluate the severity of his prostate disability. The Board finds that the most recent VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the prostate disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, he has not asserted, and the evidence does not show, that his symptoms have materially worsened since the October 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination regarding the issue decided herein. As noted, the Veteran was provided with an opportunity to set forth his contentions during a hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that during the hearing the undersigned set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board also finds that there was substantial compliance with the most recent September 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In this case, the Board directed the AMC/RO to obtain and associate all outstanding VA treatment records, and then afford the Veteran a VA examination to determine the current severity of his prostate disability. A review of the claims file reveals all updated records have been associated with the claims file; and as noted, the Veteran was afforded a VA examination in October 2012. The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, he has not asserted, and the evidence does not show, that his symptoms have materially worsened since the VA examination. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In claims for increased ratings, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). "Staged" ratings have been assigned for the Veteran's prostate disability by the RO, and as the Veteran has not expressed satisfaction with staged ratings, all stages are being considered. The Veteran's prostate disability is evaluated as 0 percent disabling prior to October 17, 2006; 10 percent from October 17, 2006 to October 16, 2012; and 40 percent disabling thereafter. He contends that this disability was and is more severe than contemplated by the respective assigned ratings. 38 C.F.R. § 4.115b, Diagnostic Code 7527 (2013) indicates that prostate gland injuries, infections, hypertrophy, postoperative residuals, are to be rated as voiding dysfunction or urinary tract infection, whichever is predominant. Urinary incontinence: A 20 percent evaluation is warranted for urine leakage/incontinence requiring the wearing of absorbent materials which must be changed less than 2 times per day; a 40 percent evaluation is warranted for urine leakage/incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; and a 60 percent evaluation is warranted for urine leakage/incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. Urinary frequency: A 10 percent evaluation is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night; a 20 percent evaluation is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night; and a 40 percent evaluation is warranted for a daytime voiding interval less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. Obstructive Voiding: A 0 percent evaluation is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year; a 10 percent evaluation is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc.; (2) Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent evaluation is warranted for urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. With respect to urinary tract infections, a 10 percent rating is warranted when the infection requires long-term drug therapy with one to two hospitalizations per year and/or requiring intensive management. A 30 percent rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater, than two times a year), and/or requiring continuous intensive management. A compensable rating for the period prior to October 17, 2006 At the outset, evidence dated substantially prior to May 2001 is of record, for example, but no mention of it is made here. The period on appeal extends back only to one year prior to receipt of the Veteran's May 2002 claim for increase. A January 2002 VA treatment record documents that the Veteran's prostate was smooth, soft, non-tender, and without nodules. A July 2002 VA treatment record documents that the Veteran's prostate was moderately enlarged and smooth. Benign prostatic hypertrophy (BPH) was diagnosed, and the Veteran was given a trial of prazosin. A January 2003 VA treatment record documents the Veteran's complaints of difficulty with urination, to include urgency and hesitancy. A urinary tract infection (UTI), as well as BPH was diagnosed. The Veteran was prescribed antibiotics for one week. A February 2004 VA treatment record documents the Veteran's complaints of pain in the abdominal area with deep palpation. The assessment was UTI, and bactrim was prescribed for 5 days. On February 2004 VA genitourinary examination, the Veteran reported taking medication in the past to decrease the size of his prostate. He indicated that he was no longer on the medication. He denied chills, fever, or urethral discharge. Physical examination revealed the prostate was smooth, enlarged x2, mildly tender, and without prostatic secretions. The genitourinary examination was unremarkable. Recurrent prostatitis was diagnosed. During the May 2005 Travel Board hearing, the Veteran testified that he had to constantly use the bathroom all the time, and that he has had accidents in the bed and on the job. On October 17, 2006 VA examination, the Veteran reported that his Prostate-Specific Antigen (PSA) is followed regularly and has been normal. He reported no family history of prostate cancer. The Veteran reported having to wake up two times at night to void. He reported urinary frequency and urgency but did not have urinary leakage. He denied having to wear pads for urinary leakage. The Veteran reported post void dribbling; and an infection approximately one year prior that was treated with antibiotics. Physical examination revealed that the prostate was enlarged x1, but soft and smooth, without any nodules present. Based on the above, the Board finds that a compensable evaluation for the Veteran's prostate disability for the period through October 17, 2006, is not warranted based on consideration of urine leakage. The evidence of incontinence is minimal. There are no diagnoses of urinary incontinence, and in fact, the February 2004 VA examination notes that the genitourinary examination was unremarkable. Of record is the Veteran's May 2005 testimony that he has had accidents in the bed and on the job. The Board notes, however, there is no indication that the Veteran reported such to his VA providers. Further, there is no evidence that the Veteran had to wear absorbent materials which must be changed. Even the lowest urine leakage rating of 20 percent is not merited for these reasons. The Board also finds that a compensable evaluation for the prostate disability for the period through October 17, 2006, is not warranted based on urinary frequency. Absent from the treatment records is any information regarding the Veteran's daytime voiding interval. While the Veteran testified at his Board hearing that he has to go to the bathroom all the time. There is no indication that he experienced daytime voiding between two and three hours, or awakes to void two times per night. Further, the Board finds that a compensable evaluation for the prostate disability for the period through October 17, 2006, is not warranted based on consideration of obstructive voiding. While a January 2003 treatment record documents the Veteran's complaints of difficulty with urination, to include urinary hesitancy, at no time was it determined that the Veteran met any of the enumerated criteria for even the lowest 10 percent rating. There is no evidence concerning the amount of post void residuals or peak flow rate as determined by uroflowmetry are of record. The January 2003 and February 2004 records note that the Veteran has a UTI. The Board notes, however, there is no indication that such were characterized as recurrent, and it follows that such would not be secondary to any such obstruction. Finally, stricture disease was not referenced at all. Neither was any dilatation. The Board finally finds that a compensable evaluation for the prostate disability for the period through October 17, 2006, is not warranted based on consideration of UTI. There is no indication that the Veteran required any hospitalization. There additionally is no indication of any intensive management. With respect to drug therapy, the Veteran was prescribed levaquin for the UTI in January 2003; and bactrim for UTI in February 2004. The Board notes, however, these prescriptions were used in the treatment of infection, and was used only for one week; and five days respectively. Even the lowest UTI rating of 10 percent accordingly is not merited. For each of the above reasons, the preponderance of the evidence is against the Veteran's entitlement to a compensable disability evaluation for his service-connected prostate disability for the entire period through October 17, 2006. The benefit of the doubt rule therefore is inapplicable, and staged ratings within this period are inappropriate. A rating in excess of 10 percent from October 17, 2006 to October 16, 2012 As noted above, on October 17, 2006 VA examination, the Veteran reported that his Prostate-Specific Antigen (PSA) is followed regularly and has been normal. He reported no family history of prostate cancer. The Veteran reported having to wake up two times at night to void. He reported urinary frequency and urgency but did not have urinary leakage. He denied having to wear pads for urinary leakage. The Veteran reported post void dribbling; and an infection approximately one year prior that was treated with antibiotics. Physical examination revealed that the prostate was enlarged x1, but soft and smooth, without any nodules present. During the October 2007 videoconference hearing, the Veteran testified that he awakes at least 3 times per night to urinate. A January 2008 VA treatment record documents the Veteran's complaints of continued nocturia and dribbling. A January 2010 VA treatment record documents the Veteran's complaints of difficulty with urination, to include hesitancy. On October 2010 VA examination, the Veteran reported that his primary symptom is starting and stopping his urine with occasional burning. He indicated that he had not been treated recently for fever with antibiotics and has no regular dysuria on voiding. The Veteran reported that his prostate disability has never kept him from work, and it was noted that he currently drove a bus for disabled children. Physical examination of the prostate revealed that it was only modestly enlarged; it was soft, no nodules, non tender. On November 2010 VA examination, the Veteran reported urinary frequency every 2 hours during the day. He reported that he gets up 2 to 3 times at night. He indicated that he has post void dribbling where he will moisten his underwear and that he sometimes wears a pad whenever he goes to work or church. He indicated that if he is home, he does not wear a pad. Physical examination of the prostate reveals it is enlarged, but soft, smooth, and nontender. On October 16, 2012 VA examination, the Veteran reported difficulty with voiding, frequency, nocturia, and leakage. It was noted that the Veteran required absorbent material which must be changed less than 2 times per day. Daytime voiding was reported at an interval of less than 1 hour; and nighttime awakening to void was 5 or more times. The Veteran reported hesitancy, slow or weak stream, and decreased force of stream; however, none of the issues were markedly slow or decreased. It was noted that the Veteran experienced recurrent infections, and that long-term drug therapy was used. The examiner indicated that the prostate disability did not interfere with the Veteran's job duties. Based on the above, the Board finds that a rating in excess of 10 percent for the Veteran's prostate disability for the period from October 17, 2006, through October 16, 2012 is not warranted. The Board notes that in order to warrant a rating in excess of 10 percent, the Veteran's disability would have to require the wearing of absorbent materials; be manifested by daytime voiding interval between one and two hours, or awakening to void three to four times per night; manifested by urinary retention requiring intermittent or continuous catheterization; or manifested by a recurrent, symptomatic urinary tract infection requiring drainage/frequent hospitalization (i.e., greater than two times per year), and/or requiring continuous intensive management. The Board notes that based on the available evidence during this period, the Veteran's disability does not meet any of these criteria. A rating in excess of 40 percent from October 16, 2012 As noted above, in October 16, 2012 VA examination, the Veteran reported difficulty with voiding, frequency, nocturia, and leakage. It was noted that the Veteran required absorbent material which must be changed less than 2 times per day. Daytime voiding was reported at an interval of less than 1 hour; and nighttime awakening to void was 5 or more times. The Veteran reported hesitancy, slow or weak stream, and decreased force of stream; however, none of the issues were markedly slow or decreased. It was noted that the Veteran experienced recurrent infections, and that long-term drug therapy was used. The examiner indicated that the prostate disability did not interfere with the Veteran's job duties. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent for his service-connected prostate disability. In this regard, the competent and probative evidence does not show that the Veteran requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. As such, an increased rating is not warranted for voiding dysfunction. With regard to urinary frequency, the Veteran is currently assigned the maximum disability rating. Furthermore, the maximum disability rating for obstructed voiding and urinary tract infection is 30 percent. Finally, the competent and probative evidence of record does not indicate that the Veteran's prostate disability is manifested by renal dysfunction. As such, the Board will not address whether a rating increase is warranted under such criteria. Extraschedular considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. The Board recognizes that an evaluation in excess of the 40 percent rating may be assigned for certain manifestations of the service-connected prostate disability. The Board notes, however, as explained in detail above, the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. Thus, the Veteran's prostate disability does not present an exceptional or unusual disability picture. Consequently, the Board need not address whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 115-16. For these reasons, the rating schedule is adequate to evaluate the disability, and referral for extraschedular consideration is not in order. Finally, as the Veteran is currently employed (see October 2010 VA examination; additionally most recent examinations indicate that the prostate disability does not interfere with work), entitlement to a total disability rating due to individual employability resulting from service-connected disability has not been raised by the record. ORDER Entitlement to higher ratings for a prostate disability currently rated as noncompensable prior to October 17, 2006; 10 percent from October 17, 2006 to October 16, 2012; and 40 percent thereafter is denied. REMAND Because action, relevant to the Veteran's skin disability, ordered in the Board's September 2012 Remand was not complied with, this matter must be remanded, once again for more complete development and adjudicatory action. See Stegall v. West, 11 Vet. App. 268 (1998)(a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Compliance with the Board's remand instructions is not a discretionary matter. The RO/AMC should be well aware by now that when the Board fails to return a case to the RO/AMC for completion of actions ordered in a remand that were not completed, and the Board's decision is appealed, the U.S. Court of Appeals for Veterans Claims (either by endorsement of a Joint Motion by the parties or by Memorandum Decision vacating the Board's decision) routinely, under the Stegall precedent, returns the case to the Board for completion of the action the Board sought in the remand. The RO is advised that should the action ordered by the Board in this remand remain not completed, the Board would have no recourse but to remand the case, still again, for completion of the action ordered. The Veteran contends that the primary time of occurrence (for severity of the skin disability) is usually in the summer when he is sweating. In the September 2012 remand, the Board noted that the Veteran underwent a VA examination in October 2010 in which the Veteran reiterated his contentions that his skin disability manifests during the summer. The September 2012 remand instructed that the Veteran be scheduled for an updated VA examination for his skin disability, if possible, during an active phase. There is no indication that the RO/AMC tried to arrange this, as the Veteran was scheduled for a VA skin examination in October 2012. During that examination, the examiner noted that the Veteran's skin condition was inactive at the time. The Court has held that when a disease fluctuates between active and inactive stages, VA's duty to assist requires that a medical examination take place during an active stage of the disease. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Consequently, a new examination during the summer (to the extent feasible) is warranted. (Parenthetically, the Board notes that, given the inherent lack of control as to the weather on the day of the Veteran's examination, he is encouraged to take pictures or otherwise document his condition during times of flare-up and should present any such evidence to the VA examiner on the date of his examination.) The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for a skin disability in recent years. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected skin disability, if possible during an active phase of this disability. According to the Veteran, his service-connected skin disability is active in the summertime. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether the service-connected skin disability affects 20 to 40 percent of the entire body or exposed areas of the body or requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more but not constantly during the past 12-month period. The examiner also is asked to state whether the service-connected skin disability affects more than 40 percent of the entire body or exposed areas of the body or requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. A complete rationale must be provided for any opinions expressed. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's skin disability claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs