Citation Nr: 1646668 Decision Date: 12/13/16 Archive Date: 12/21/16 DOCKET NO. 10-27 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a referral for consideration of an extraschedular rating for residuals of prostate cancer, a residual prostatectomy scar, chronic pelvic pain, and erectile dysfunction. 2. Entitlement to a total disability based upon individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in May 2016, granting a joint motion for partial remand vacating that part of a June 2015 Board decision denying referral for an extraschedular rating and a TDIU and remanding the matters for additional development. The issues initially arose from rating decisions in March 2009 and February 2014 by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Court in its May 2016 order incorporated the terms of the joint motion for partial remand and found an adequate explanation had not been provided as to how the rating schedule contemplated the appellant's inability to sit for more than one to one and a half hours at a time, the need to change positions every hour, and the need to sit on a donut cushion. Similarly, in an October 2016 brief, the Veteran described his most disabling residuals were his voiding dysfunction and chronic pelvic pain. It was further noted that he "suffered from other symptoms and impairments associated with the prostate cancer which were not contemplated by the rating criteria" and that he suffered from the side effects of medication prescribed for his pelvic pain disability. It is unclear what specific symptoms and side effects were involved. There is also inconsistent evidence with respect to the pertinent matters at issue. VA examination reports dated in March 2011 and August 2012 noted problems with urinary leakage and pelvic pain. The Veteran reported the same at his April 2015 personal hearing. Yet, when he was seen for purposes of treatment, as opposed to seeking compensation benefits, an April 2013 VA treatment report noted that upon routine follow-up for his history of prostate cancer he had no present complaints and denied having any genitourinary symptoms. VA treatment records were last obtained for the record in May 2014. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Here, the Board finds the Veteran must be afforded additional VA examinations. See Todd v. McDonald, 27 Vet. App. 79, 90 (2014) (remanding a TDIU request and extraschedular issue together "to ensure that the Board has a complete record upon which to decide and address all potentially favorable material evidence regarding any extraschedular issues associated with [the appellant's] claim"). Prior to the examinations, up-to-date VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records since May 2014. 2. Schedule the Veteran for appropriate VA examinations for the following: a) Opinion as to the current nature and extent of his service-connected residuals of prostate cancer, residual prostatectomy scar, chronic pelvic pain, and erectile dysfunction disabilities. The examiner must, to the extent possible, record all manifest symptoms and impairments associated with these disabilities and/or the chronic side effects of any medications prescribed for the service-connected disabilities. b) Comment as to his ability presently and during the course of this appeal to function in an occupational environment and describe his functional impairment caused solely by his service-connected disabilities. The examiner should summarize the pertinent evidence of record and reconcile any opinions provided with other such opinions or evidence. All examinations, tests, and studies must be conducted. The medical reasons for the opinions provided should be set forth in detail. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 3. Thereafter, the AOJ should address the issues on appeal as well as any additional issues perfected for appellate review. If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).