Citation Nr: 1531017 Decision Date: 07/21/15 Archive Date: 08/05/15 DOCKET NO. 12-31 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to increased initial rating in excess of 30 percent for service-connected anxiety. 2. Entitlement to service connection for bladder cancer, to include as secondary to prostate cancer and radiation treatment for prostate cancer. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1948 to November 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from November 2010 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bladder cancer, and assigned a 30 percent disability evaluation for anxiety, respectively. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In an April 2014 letter from the Pichardo clinic, the Veteran's clinician indicated that the Veteran was unable to work due to multiple factors, including his service-connected anxiety. In light of the Court's holding in Rice, the Board has considered a TDIU claim as part of the Veteran's pending increased rating claims and has accordingly listed the raised TDIU claim as an issue. It is noted that on July 3, 2014, the RO received notification from the appellant through his authorized representative, that a withdrawal of the appeal for an increased rating for prostate cancer was requested. The withdrawal of the appeal with respect to that issue was effective upon receipt at the RO and therefore is not before the Board at this time. 38 C.F.R. § 20.204 (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran essentially contends that his service-connected anxiety is more severe than contemplated by his current rating, and that his bladder cancer was caused by his radiation treatment for his service-connected prostate cancer. First, in his June 2015 hearing, the Veteran stated he had been treated by a Dr. B., who used to be his primary care physician. Upon remand, any relevant outstanding treatment records should be obtained. Next, during his April 2012 VA examination for his anxiety, the examiner noted that the Veteran displayed symptoms of anxiety and sleep impairment, recurrent distressing dreams, hypervigilance, and exaggerated startle response. The assigned GAF was 70. In June 2015, the Veteran submitted letters from a social worker. The social worker stated the Veteran suffered from a chronic history of hypervigilance, difficulty concentrating, exaggerated startle response to external stimuli and diminished interested and participation in significant activities, although he referenced these symptoms in the context of PTSD treatment, while the Veteran is service connected for anxiety. The clinician noted that a GAF score of 45 was assigned in December 2012. In light of the potential worsening of the psychiatric disorder as reflected by the change in GAF scores, the Board finds that a contemporaneous VA medical examination is warranted to determine the current severity of the Veteran's anxiety. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Next, in August 2010, the Veteran was afforded a VA examination to determine whether his bladder cancer was as likely as not caused by his prostate cancer. The examiner opined that it was less likely than not that the Veteran's bladder cancer was due to his prostate cancer as review of the Veteran's bladder cancer biopsy report showed that the treating clinician stated that the bladder cancer did not appear to be a prostatic adenocarcinoma even though the Veteran has a history of prostatic adenocarcinoma. The Veteran, however, contends that his bladder cancer is secondary to his prostate cancer because his prostate cancer treatment, including radiation, has caused his bladder cancer. He submitted an April 2014 letter from a private clinician from Urology Healthcare of Central Florida, stating that treatment of prostate cancer with radiation can cause secondary bladder cancer, according to publications. Therefore, upon remand, a medical opinion should be obtained concerning the nature and etiology of his bladder cancer, including whether it has been caused or aggravated by the Veteran's prostate cancer and prostate cancer treatment. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Finally, the issue of TDIU should be adjudicated after the above is completed, as it is intertwined with the other issues. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request that the Veteran provide or authorize the release of any outstanding records that are relevant to his claims. With appropriate authorization, obtain any relevant outstanding records from Dr. B., the Veteran's primary care provider, if the Veteran indicates she is not a VA clinician. See June 2015 hearing transcript. 2. Obtain outstanding VA treatment records, including records from the Lakeland Vet Center. 3. Then, after the foregoing development actions have been performed, the Veteran should be afforded a VA psychiatric examination to determine the current symptoms and severity of his service-connected anxiety. The electronic claims folder should be made available to the medical professional. The examiner must review the electronic claims file, housed in VBMS and Virtual VA. A notation to the effect that this record review took place shall be included in the report of the examiner. All tests and studies deemed necessary by the examiner should be performed. The examiner should provide information concerning the current nature and severity of the Veteran's service-connected anxiety disorder. The examiner must also provide an assessment of the Veteran's functional limitations due to anxiety, as they may relate to his ability to function in a work setting and to perform work tasks. 4. Obtain a medical opinion concerning the etiology of his bladder cancer. The electronic claims folder should be made available to the medical professional. The examiner must review the electronic claims file, housed in VBMS and Virtual VA. A notation to the effect that this record review took place shall be included in the report of the examiner. Specifically, the examiner must determine the following: a. whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bladder cancer began in or is etiologically related to any incident of the Veteran's military service. b. whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bladder cancer was either (1) caused by or (2) is aggravated (permanently worsened beyond its normal progression) by the Veteran's service-connected prostate cancer, including radiation treatment for the prostate cancer. A rationale should be provided for both the causation and aggravation opinions. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's bladder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected prostate cancer or prostate cancer treatment. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The examiner's attention is directed to the April 2014 private clinician letter stating that treatment of prostate cancer with radiation can cause secondary bladder cancer, according to publications. See April 2014 Urology Healthcare of Central Florida record. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If it is determined that an examination is necessary in order to provide the requested information, one should be scheduled. 5. Then conduct any development deemed appropriate concerning the claim for an increased rating on the basis of TDIU. 6. Thereafter, adjudicate the Veteran's claims, to include TDIU. If the benefits sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and allowed an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ S. S. Toth 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) (2013).