Citation Nr: 1801905 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-28 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an increased disability evaluation for residuals of prostate cancer, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1961 to January 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In September 2015, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. This issue was previously before the Board in October 2015, at which time it was remanded for additional development. In December 2016, the Board denied the issue on appeal. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2017 Order pursuant to an August 2017 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's denial of entitlement to a rating in excess of 20 percent for residuals of prostate cancer. That issue is once again before the Board. The Board additionally notes that the same December 2016 Board decision also remanded the issue of entitlement to service connection for nephrosclerosis with chronic renal disease. A hearing addressing that issue was held in May 2017 before a different Veterans Law Judge and a separate November 2017 Board decision remanded that issue for further development. That service connection issue will be addressed by that Veterans Law Judge in a separate decision at a later date and is not part of this decision. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 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's residuals of prostate cancer are currently evaluated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528, and are rated as voiding dysfunction under 38 C.F.R. § 4.115a. Under 38 C.F.R. § 4.115a, a 20 percent rating is warranted for urine leakage, frequency, or obstructed voiding requiring the wearing of absorbent materials that must be changed less than two times per day. A 40 percent rating requires absorbent materials that must be changed two to four times per day. In denying a rating in excess of 20 percent, the Board found that the Veteran reported wearing absorbent material which he changed no more than two times per day but found that such evidence did not support the claim for an increased rating because the Board concluded that the evidence showed that the Veteran's urinary incontinence was related to his age and was not a residual of his treatment for prostate cancer. In this regard, although a March 2016 VA examiner opined that the Veteran's urinary incontinence was not related to residuals of prostate cancer, the JMPR found that the Board had failed to adequately consider evidence indicating that the Veteran's urinary incontinence was related to residuals of prostate cancer, including a December 2011 VA examination describing his voiding dysfunction as "post surgical," and a November 2013 VA examination finding the etiology to be "prostatectomy, aging." The JMPR also found that the Board's conclusion that the Veteran reported changing absorbent material no more than two times per day was erroneous. In this regard, the JMPR noted that statements made at the November 2013 VA examination, September 2015 Board hearing and March 2016 VA examination indicated that he changed absorbent materials as often as four times per day. In sum, therefore, the pertinent question is whether the Veteran's urinary incontinence is related to residuals of prostate cancer and, if so, how frequently the Veteran changes absorbent material. While the March 2016 VA examiner offered an opinion as to the etiology of the Veteran's urinary incontinence, he did not address the evidence discussed above suggesting that it is the result of his prostate cancer. Accordingly, the Board finds that an addendum opinion is needed. The Board also notes that since the December 2016 Board decision, additional potentially relevant evidence has been associated with the claims file, to include private treatment records received in June 2017. In addition, the separate November 2017 Board decision addressing service connection for nephrosclerosis with chronic renal disease remanded that appeal in part to obtain outstanding VA treatment records. Since such evidence may also be pertinent to the increased rating claim presently on appeal, the AOJ should ensure that such development has been completed prior to requesting an addendum opinion and returning the case to the Board. Accordingly, the case is REMANDED for the following action: (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. Associate with the claims file all outstanding VA treatment records if such records have not already been obtained pursuant to the separate November 2017 Board remand addressing the issue of entitlement to service connection for nephrosclerosis with chronic renal disease. 2. Thereafter, forward the entire claims file to the examiner who prepared the March 2016 VA prostate cancer disability benefits questionnaire for an opinion addressing the etiology of the Veteran's urinary incontinence, or, if that examiner is unavailable, to another suitably qualified VA examiner. The claims file should be reviewed by the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's urinary incontinence is the result of his service-connected residuals of prostate cancer. In answering this question, the examiner should address the December 2011 VA examination describing his voiding dysfunction as "post surgical," and the November 2013 VA examination finding the etiology to be "prostatectomy, aging." A complete rationale should accompany any opinion provided. 3. After completing any additional development deemed necessary, readjudicate the claim. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ GAYLE E. STROMMEN 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) (2017).