Citation Nr: 1753746 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-01 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability evaluation for residuals of cancer of the prostate, status post prostatectomy, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND At the time of his April 2017 hearing, the Veteran testified that the symptoms associated with his prostate cancer residuals had increased in severity. The Board notes that the Veteran has not been afforded a VA examination during the appeal period. The Board further observes that while the Veteran testified that he was changing his diapers more than the three times per day he was changing them in 2013, he did not provide a specific number as to the amount of daily changes. A review of the criteria for an increased evaluation for the 60 percent rating, which the Veteran seeks, requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. The Veteran expressed his willingness to report for an examination if necessary. Based upon the Veteran's testimony, the Board is unsure whether an increased evaluation is warranted. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Thereafter, the Veteran should be scheduled for a VA examination to determine the current severity of the residuals of cancer of the prostate, status post prostatectomy. All indicated tests and studies should be performed and all findings should be reported in detail. The record must be made available to the examiner for review and the examiner should note such review in the report. The examiner must comment on the Veteran's use of absorbent materials and the changing frequency, to include the number of times on a daily basis. 3. Thereafter, the RO should review the record to ensure that all of the foregoing requested development has been completed. The RO should review the requested examination report to ensure that it is responsive to and in complete compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 4. After the above development has been completed, the RO should readjudicate the remaining issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate 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. §§ 5109B, 7112 (West 2014). _________________________________________________ K. Parakkal 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).