Citation Nr: 18155644 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-60 651 DATE: December 4, 2018 REMANDED Effective March 1, 2016, entitlement to an increased rating for residuals of prostate cancer with osteoporosis and hydronephrosis, currently evaluated as 40 percent disabling, is remanded. Entitlement to a total disability rating by reason of individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to July 1970, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Prior to December 2015, the Veteran did not file a claim indicating unemployability due to service-connected disabilities. As such, the issue of TDIU was not addressed in the December 2015 rating decision. Rather, the Veteran, through his attorney, raised the issue of TDIU as part in parcel of his pending claim of increased compensation for residuals of prostate cancer in March 2016. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In February 2016, the Veteran appointed Robert Chisholm as his authorized representative. In May 2018, Mr. Chisholm motioned the Board to withdraw as counsel in this matter in accordance with 38 C.F.R. § 20.608(b). In June 2018, the Board granted Mr. Chisholm’s motion finding that good cause has been shown for withdrawal of representation. In July 2018, VA notified the Veteran of his right to appoint a new representative, and that VA can assist in providing information regarding recognized Veterans Service Organizations and/or representatives. As of this date, there has been no communication from the Veteran appointing a new representative or requesting any information. Accordingly, the Veteran is assumed to be proceeding pro se on his pending appeal. 1. Effective on and after March 1, 2016, entitlement to an increased rating for residuals of prostate cancer with osteoporosis and hydronephrosis, currently evaluated as 40 percent disabling. Remand in this case is required for a current VA examination and referral for extraschedular consideration. Referral is warranted for extraschedular consideration of a claim for increase when it has been raised by the Veteran or record. See 38 C.F.R. § 3.321(b) (2018); Thun v. Peake, 22 Vet. App. 111, 114 (2008). The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. Thun, 22 Vet. App. at 115. First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App. at 115. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun, 22 Vet. App. at 115. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Thun, 22 Vet. App. at 115. Second, if the schedular criteria are found to be inadequate to evaluate the disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 115. If so, then the third step requires the case to be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services to determine whether the disability requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 115. As of March 1, 2016, the Veteran’s service-connected residuals of prostate cancer is rated as 40 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system warrant a 100 percent rating. 38 C.F.R. § 4.115b. Note (1) provides that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent continues with a mandatory VA examination at the expiration of six months. Where, as here, there has been no local reoccurrence or metastasis, VA regulations direct that residuals of prostate cancer be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a (2018). A 40 percent disability rating is assigned where the evidence shows continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; or, daytime voiding intervals less than one hour or awakening to void five or more times per night. A next-higher 60 percent disability rating is assigned where the evidence shows continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. A 60 percent disability rating is warranted for renal dysfunction where the evidence shows constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent disability rating is warranted where evidence shows persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent disability rating is warranted where evidence shows a condition requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. A June 2015 VA examination noted there was no renal dysfunction in the form of persistent proteinuria, hematuria, or GFR < 60, but did note there was hydronephrosis and nephrolithiasis. The examiner also noted there was osteoporosis from radiation therapy and increased kidney stone formation due to the cancer. Thus, it is unclear if the Veteran is entitled to separate evaluations or an extraschedular evaluation. 2. Entitlement to TDIU. To the extent the Veteran is claiming that his service-connected residuals of prostate cancer causes an inability to work, the claims are inextricably intertwined and TDIU must be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected residuals of prostate cancer. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must determine all residuals of residuals of prostate cancer, to include hydronephrosis, nephrolithiasis, and osteoporosis. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After any additional records are associated with the claims file, and after the requested VA examination is conducted and the reports are associated with the claims file, refer the Veteran's case to the VA Under Secretary for Benefits or the Director of the VA’s Compensation and Pension Service for review of the question of whether an extra-schedular evaluation is warranted for the Veteran’s residuals of prostate cancer. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel