Citation Nr: 18145759
Decision Date: 10/30/18	Archive Date: 10/30/18

DOCKET NO. 16-22 499
DATE:	October 30, 2018
REMANDED
Entitlement to an initial compensable disability rating for prostate cancer residuals prior to March 1, 2016, and higher than 20 percent thereafter, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from November 1966 to August 1972, which included service in the Republic of Vietnam.
In reviewing the procedural history of this case, the Veteran was initially awarded service connection for prostate cancer, status post prostatectomy, and assigned a noncompensable (0 percent) rating, effective February 17, 2014.  See May 2015 rating decision.  However, during the course of the appeal, the agency of original jurisdiction (AOJ) awarded a higher, 20 percent rating, effective March 1, 2016, resulting in the assignment of staged ratings during the appeal period for the Board to consider.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise).
Additional VA treatment records were added to the records following the April 2016 Statement of the Case.  Inasmuch is a remand is warranted for independent evidentiary development, the AOJ will have an opportunity to consider this added evidence on remand, and a waiver of AOJ review under 38 C.F.R. § 20.1304(c) will not be sought by the Board.
1. Entitlement to an initial compensable disability rating for prostate cancer residuals prior to March 1, 2016 is remanded.
2. Entitlement to an initial disability evaluation higher than 20 percent after March 1, 2016 is remanded.
There are outstanding relevant private treatment records that should be obtained.  Specifically, a February 2016 VA treatment report notes that the Veteran was followed for his prostate cancer by “Dr[.] Colglazier” in Grant, Nebraska.  A remand is required to allow VA to obtain authorization and request these records. 
Moreover, it appears that VA received some of Dr. Colglazier’s records but they have not been made part of the Veteran’s electronic claims folder; a February 2017 VA treatment record reflected that VA “[r]eceived records from [C]olglazer [C]linic,” identified as a laboratory document dated December 13, 2017, which were forwarded for “review and scanning.”  It appears this document is available for viewing through VistA Imaging Display.  See December 2017 VA treatment note (entitled “Laboratory Outside Medical Record Note” and stating “Attached are scanned documents related to this patient’s treatment . . . click on Tools.  Click on VistA Imaging Display.”).  As any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal, a remand is required to allow VA to obtain the records that appear to be available on VistA Imaging, as well as any recent treatment the Veteran may have received related to his prostate cancer residuals.
The matters are REMANDED for the following actions:
1. Ask the Veteran to complete a VA Form 21-4142 for Colglazer (or Colglazier) Clinic in Grant, Nebraska.  Make two requests for the authorized records from this facility unless it is clear after the first request that a second request would be futile.
2. Obtain the Veteran’s scanned documents from VistA Imaging referenced in the December 13, 2017 VA treatment note, as well as any recent VA treatment records relevant to his prostate cancer residuals after May 2018.
 
H.M. WALKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K.Gielow, Counsel