Citation Nr: 18149679
Decision Date: 11/14/18	Archive Date: 11/13/18

DOCKET NO. 16-39 239
DATE:	November 14, 2018
REMANDED
Entitlement to a disability rating in excess of 60 percent for prostate cancer with erectile dysfunction is remanded.
REASONS FOR REMAND
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision that assigned a disability rating of 60 percent for the Veteran’s prostate cancer with erectile dysfunction.  The Veteran was originally granted service connection for this condition in a June 2014 rating decision and he was assigned a 100 percent rating effective November 12, 2013.  The Veteran’s 60 percent rating is effective as of July 1, 2015.
Although the Board sincerely regrets the additional delay, this matter must be remanded for additional development.  A review of the Veteran’s file reveals that the Veteran underwent a VA examination in June 2018 to determine the current severity of his prostate cancer.  This occurred well after the appeal was certified to the Board, and that evidence has not been considered by the regional office (RO).  
Initial RO review is automatically waived for evidence submitted by the Veteran or his representative if the Veteran’s appeal to the Board is dated after February 2, 2013, as it is in this case.  However, this automatic waiver does not apply to VA-generated evidence, such as VA examination reports that were not submitted by the Veteran.  38 U.S.C. § 7105(e) (2012).  Further, waiver of the right to a supplemental statement of the case (SSOC) that considers additional evidence is only applicable to evidence submitted by the Veteran or his representative.  See 38 C.F.R. § 20.1304 (2017).  Accordingly, this claim must be remanded so that an SSOC addressing the June 2018 VA examination may be issued.  See 38 C.F.R. §§ 19.31, 19.37.
The matter is REMANDED for the following action:
Review the record, including any newly submitted evidence, and readjudicate the claim for a disability rating greater than 60 percent for prostate cancer with erectile dysfunction.  If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, if applicable.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
 
K. Parakkal
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Freda J. F. Carmack, Associate Counsel