Citation Nr: 1800608 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-22 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether the reduction of 100 percent to 10 percent effective August 1, 2013, for evaluation of stage II prostate cancer was proper. 2. From August 1, 2013, entitlement to an increased disability rating in excess of 20 percent for service-connected residuals of stage II prostate cancer, from August . WITNESS AT HEARING ON APPEAL Veteran and son-in-law ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Navy from June 1966 to July 1970, with service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from the May 2013rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In the May 2013 rating decision, the RO decreased the Veteran's service-connected stage II prostate cancer from 100 to 10 percent, effective August 1, 2013. The Veteran filed his notice of disagreement in July 2013, seeking an increased rating. The Veteran timely filed his substantive appeal in June 2014. Generally, in cases where a veteran's disability rating is reduced, the Board must determine whether the reduction of the disability rating was proper and must not phrase the issue in terms of whether the veteran is entitled to an increased rating. Green v. Nicholson, 21 Vet. App. 512 (2006) (citing Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992)). Here, however, the Board finds that both issues have been reasonably raised and appealed. The rating decision, which addressed the reduction issue, implicitly denied an increased rating; the SOC, which addressed the increased rating issue, implicitly denied the reduction issue. See, e.g., Cogburn v. McDonald, 809 F.3d 1232, 1235 (Fed. Cir. 2016). The Board otherwise waives any jurisdictional defect as to the appeal of both issues. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In September 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran's last VA examination for his stage II prostate cancer residuals was in January 2013. During the September 7, 2017 hearing, the Veteran testified that his symptoms have worsened and he has been voiding with increased frequency at nighttime. He also testified to erectile dysfunction issues, and the possible need to wear absorbent materials due to voiding dysfunction. On remand, the Veteran should be scheduled for a VA examination to determine the current nature and etiology of any prostate cancer residuals. In addition, the file should be updated with current VA medical records as well as private treatment records from Fairmont General Hospital, where the Veteran was treated for his stage II prostate cancer. The question of propriety of the reduction and the current 20 percent disability rating for prostate cancer are inextricably intertwined and a Board decision on the reduction claim would be premature. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Update the file with current medical records, to include any VA medical records and private records from Fairmont General Hospital. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for a VA examination for his service-connected prostate cancer, to determine the current severity of that disability. Following a review of the files, including any records obtained as a result of this remand, the examiner should offer an opinion on the current severity of the Veteran's prostate cancer, to specifically include whether there has been any local recurrence or metastasis, and consideration of any voiding and/or renal dysfunction, if present, and the severity of any such dysfunction. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. If the examiner cannot respond to the inquiries without resort to speculation, he or she must explain why this is so. 3. After completing all preliminary development indicated, review the record and, if any benefit sought on appeal remains denied, furnish the Veteran a supplemental statement of the case and give the opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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 (2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).