Citation Nr: 1805226 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 15-31 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating higher than 20 percent for prostate cancer before June 27, 2016, and to a rating higher than 40 percent thereafter. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to November 1964, from January 1968 to June 1969, and from August 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the VA RO. September 2015 substantive appeal requested a hearing before the Board. Hearing requested with withdrawn in December 2016. In his September 2015 substantive appeal, the Veteran requested a hearing before the Board. However, he later withdrew his hearing request in writing in December 2016. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (e). A July 2016 rating decision increased the rating from 20 percent to 40 percent for the Veteran's prostate cancer, effective June 27, 2016. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In May 2017, this matter was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's increased rating claim, so that he is afforded every possible consideration. The Veteran contends that his service-connected prostate cancer is more severe than his than his current evaluations indicate. In a December 2017 statement, the Veteran stated that he believed that his claim was denied "using outdated information." The Board notes that during the most recent June 2016 VA prostate cancer Disability Benefits Questionnaire (DBQ) examination, the examiner indicated that she did not review the VBMS and Virtual VA claims files. In addition, pursuant to the Board's May 2017 remand, additional treatment records were associated with the electronic claims file which a VA examiner has not had an opportunity to review. On remand, the VA examiner should review all pertinent medical evidence for the period on appeal in assessing the nature and severity of the Veteran's prostate cancer. On these bases, the Veteran's rating claim should be remanded for new VA examinations to obtain updated findings regarding the severity of the Veteran's prostate cancer. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). VAOPGCPREC 11-95 (1995). 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. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his prostate cancer. The claims file should be made available to the examiner. The examiner must review the entire record, to specifically include a complete copy of this remand. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. All symptomatology associated with the Veteran's prostate cancer should be reported. The examiner should also provide a retrospective medical opinion on the Veteran's prostate cancer throughout the pendency of the appeal. That is, with consideration of the evidence of record, including the Veteran's lay statements, and his history, comment on the historical severity of the Veteran's prostate cancer. If this opinion cannot be provided, the examiner should clearly explain why this is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. The report of examination should include the complete rationale for all opinions expressed. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 (2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).