Citation Nr: 1340975 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-39 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for the residuals of prostate cancer, in excess of 40 percent prior to April 19, 2010, and 60 percent thereafter. 2. Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from August 1966 to August 1968. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A May 2009 rating decision in part denied entitlement to service connection for sleep apnea. In March 2010, the Veteran's then counsel submitted a Notice of Disagreement with this decision. In December 2011, the Veteran testified before the undersigned Veterans Law Judge, and his counsel withdrew the claim for sleep apnea. Therefore, it is not on appeal. In a March 2011 rating decision, the RO increased his prostate cancer residuals rating to 60 percent disabling, effective April 19, 2010, after submission of the Veteran's notice of disagreement. As noted above, in December 2011, the Veteran testified before the undersigned as to the issue of a higher rating for the prostate cancer residuals. However, in a May 2012 rating decision, the RO proposed to decreased this rating to 40 percent disabling. Because the issue of an increased rating for prostate cancer residuals was pending before the Board, THE RO DID NOT HAVE JURISDICTION OVER ANY ASPECT OF THE RATING OF THE PROSTATE CANCER RESIDUALS. The proposed rating reduction is therefore void, and the Veteran's claim for a rating higher than 60 percent remains pending as is addressed below. A review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal. In June 2012, the Veteran released his then legal counsel and appointed the Disabled American Veterans to represent him. The question of representation is therefore further addressed below. 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 The Veteran testified in December 2011 that he wears absorbent materials that must be changed "seven, eight, 10 times a day." A May 2012 rating decision indicates symptoms that lessened in severity since the hearing. It cites a May 2012 VA examination, but this record is not contained in the claims file, so it must be obtained on remand. Additionally, because the level of disability is uncertain, another VA examination will be ordered. In a January 2009 statement, the Veteran reported that he is receiving Social Security Administration (SSA) disability benefits. These records must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Per a June 2012 letter, the Veteran elected Disabled American Veterans as his representative. A VA Form 21-22 confirming this election does not appear in the claims file. Send the Veteran another Form 21-22, instruct him to return it, and upon return, associate it with the claims file. 2. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment, pertinent to the claim on appeal, that is not evidenced by the current record - to specifically include, but not limited to, any VA outpatient records for any treatment of his prostate cancer residuals. The Veteran must be provided with the necessary authorizations for the release of any private treatment records not currently on file. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. In particular, arrange to obtain: VA treatment records from the Murfreesboro VA Medical Center, dated since July 2012; and The May 2012 VA examination report described in the May 2012 rating decision. 3. Obtain from the SSA a copy of its decision(s) awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 4. Schedule the Veteran for a VA genitourinary examination to determine the current severity of his service-connected residuals of prostate cancer. The entire claims file must be provided to the examiner for review. All necessary tests and studies should be accomplished and all clinical findings reported in detail. After a complete review of the claims file, the examiner should respond to the following: a) 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. Also, conduct any clinical testing to determine if the Veteran has any renal dysfunction consistent with persistent edema and albuminuria with BUN; assess creatine levels; and whether the Veteran has demonstrated clinical evidence of anorexia, weight loss or other evidence of limitation of exertion. b) Provide an opinion as to whether the Veteran's service-connected disabilities (residuals of prostate cancer and PTSD) render him unable to secure or follow substantially gainful employment. THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. 4. Then adjudicate this claim in light of this and all other additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning this claim to the Board for further appellate consideration. 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). _________________________________________________ Vito A. Clementi 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).