Citation Nr: 18152551 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-07 665 DATE: November 23, 2018 ORDER The appeal of the claim of entitlement to service connection for hypertension is dismissed. The appeal of the claim of entitlement to service connection for nephrolithiasis (kidney stones) is dismissed. The appeal of the claim of entitlement to a rating in excess of 10 percent for coronary artery disease (CAD) from March 5, 2009 is dismissed. The appeal of the claim of entitlement to a rating in excess of 30 percent for CAD, from May 4, 2011, is dismissed. The appeal of the claim of entitlement to a rating in excess of 60 percent for CAD, from August 28, 2015, is dismissed. The appeal of the claim of entitlement to a compensable rating for erectile dysfunction (ED) is dismissed. The appeal of the claim of entitlement to a rating in excess of 50 percent for major depressive disorder (MDD) is dismissed. The appeal of the claim of entitlement to an effective date earlier than June 15, 2011, for MDD is dismissed. The appeal of the claim of entitlement to an effective date earlier than June 15, 2011, for the grant of special monthly compensation (SMC) based on housebound is dismissed. REMANDED The propriety of the reduction in the rating for prostate cancer from 100 percent to 40 percent, effective July 1, 2013, is remanded. Entitlement to a rating in excess of 40 percent for prostate cancer is remanded. Entitlement to special monthly compensation based on housebound status is remanded. FINDINGS OF FACT In May 2016, prior to the promulgation of a decision in the appeal, the Veteran withdrew the claim for service connection for hypertension and kidney stones, entitlement to an increased rating for CAD, ED, and MDD, and entitlement to earlier effective date for MDD and SMC. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for hypertension disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for service connection for kidney stones disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal for increased rating for CAD from March 5, 2009, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the appeal for increased rating for CAD from May 4, 2011, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the appeal for increased rating for CAD from August 28, 2015, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the appeal for increased rating for ED have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 7. The criteria for withdrawal of the appeal for increased rating for MDD have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 8. The criteria for withdrawal of the appeal for earlier effective date for MDD have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 9. The criteria for withdrawal of the appeal for earlier effective date for SMC have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to August 1976. Entitlement to service connection for hypertension and kidney stones, entitlement to increased rating from CAD, ED, and MDD, and entitlement from earlier effective date from MDD and SMC The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. The Veteran, in a May 2016 statement, requested to withdraw the claims related to hypertension, kidney stones, CAD, ED, MDD, and SMC. Therefore, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. REASONS FOR REMAND 1. The propriety of the reduction in the rating for prostate cancer from 100 percent to 40 percent, effective July 1, 2013, and entitlement to an increased rating for prostate cancer, are remanded. In an April 2011 RO rating decision the Veteran’s rating for his service-connected prostate cancer was reduced from 100 percent to 20 percent, effective July 2011. Prior to the reduction taking effect a subsequent June 2011 rating decision continued the Veteran’s rating of 100 percent, based on newly acquired evidence. In a January 2012 rating decision, the RO found clear and unmistakable error (CUE) in the previous June 2011 decision to continue the Veteran’s 100 percent rating, and again proposed a reduction of the Veteran’s rating to 40 percent, and in turn severe the Veteran’s SMC. A subsequent April 2013 rating decision effectuated the reduction of the Veteran’s prostate cancer from 100 percent to 40 percent, and reduced the Veteran’s SMC for housebound, effective July 1, 2013. Subsequently, the RO issued another rating decision in May 2013, denying increased rating in excess of 40 percent for residuals of prostate cancer. A September 2017 statement of the case (SOC) regarding the increased rating claim also denied a higher rating for the Veteran’s prostate residuals. The issue of entitlement to restoration of a reduced rating is distinct from the issue of entitlement to an increased rating for the same disability, which is addressed below. The United States Court of Appeals for Veterans Claims (Court) has emphasized that rating reduction cases are separate from rating increase cases. Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Therefore, the Board notes as these are two separate issues of increased rating for the Veteran’s prostate cancer and the propriety of the Veteran’s ratings reduction the Board will address these in turn. First, with regards to the Veteran’s rating reduction, the Board notes that subsequent to each proposal for reduction, and after the final reduction in the April 2013 rating decision, the Veteran, through his representative, has filed a notice of disagreement (NOD) to the propriety of such reduction. Specifically, in notices from June 2010, June 2011, March 2012, and finally in April 2013, the Veteran’s representative has been steadfast in explicitly contesting the propriety, whether in due process or in assessment of the Veteran’s actual level of disability, of the reduction proposed. Indeed, upon the final implementation of the reduction from 100 percent to 40 percent, the Veteran’s representative effectuated an April 2013 and June 2013 NOD which explicitly noted defect in both procedure and analysis of the Veteran’s reduction. To this end, even after the September 2017 SOC, which only spoke to a claim for increased rating, the Veteran’s substantive appeal (VA Form 9) again explicitly challenged the propriety of the Veteran’s reduction. As such, the Board finds that with regards to the claim of challenging the propriety of the Veteran’s ratings reduction, the Veteran has provided a timely NOD to its initial reduction decision in April 2013. However, as a review of the subsequent SOC in September 2017 only addresses the Veteran’s increased rating claim, the Board finds that an SOC remains in want. Therefore, the Board is required to remand the claim for issuance of a statement of the case addressing the specific issues of the propriety of the Veteran’s rate reduction. Manlicon v. West, 12 Vet. App. 238 (1999). With regards to the Veteran’s claim for increased rating for his prostate cancer, the Board finds that the Veteran has submitted sufficient statements and medical evidence to show that his condition, or residuals thereof, may have worsened during the pendency of this claim. However, as the Veteran’s claim contesting the propriety of the rating reduction is being remanded for further development, the Board finds that such development could significantly affect the claim for increased rating, to include rending such claim moot. Consequently, as the development of this ancillary claim could affect the claim for increased rating, the claim must be considered inextricably intertwined and remand is also required. Harris v. Derwinski, 1Vet. App. 180 (1991). 2. Entitlement to special monthly compensation based on Housebound is remanded. Remand is also required of the claim of entitlement for SMC. This is because the claim is inextricably intertwined with the Veteran’s increased rating claim. Harris v. Derwinski, 1Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all VA medical records of treatment, to include any hospitalizations. 2. Issue a statement of the case addressing the issue of entitlement to an increased rating for erectile dysfunction. Notify the Veteran that he must submit a timely substantive appeal to perfect an appeal of that claim. If a timely substantive appeal is received, return the case to the Board. 3. If the SOC is not favorable to the Veteran, schedule the Veteran for a VA examination, by an examiner with the appropriate expertise to ascertain the current nature and severity of service-connected residuals of prostate cancer. The examiner must review the claims file and must note that review in the report. The examiner should provide a rationale for any opinion expressed. The examiner is requested to identify all residuals of the service-connected residuals of prostate cancer. The discussion must include description of any symptoms of urinary incontinence, urinary frequency, and obstructed voiding, and state the frequency and severity, if present. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel