Citation Nr: 1817355 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 10-44 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to restoration of a disability rating of 100 percent for prostate cancer. 2. Entitlement to restoration of special monthly compensation (SMC) based on housebound criteria (38 USC § 1114(s)). 3. Entitlement to an initial compensable disability rating for erectile dysfunction. 4. Entitlement to an initial compensable disability rating for a lower abdomen scar. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1991. He was awarded the Bronze Star Medal and the Vietnam Service Medal with two Service Stars. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke Virginia. On the Veteran's October 2010 VA Form 9 (Appeal to [the Board]), the Veteran marked a box stating "I want a [Board] hearing in Washington, DC." He handwrote next to this box "only if an unfavorable decision is rendered." Upon review, this was not a clear request for a Board hearing in that it was contingent on a particular Board action. Board procedures do not allow for such contingent hearings, as Board hearings are held prior to a determination of the merits of a case. Based on the unclear nature of the Veteran's request, the Board attempted to clarify with the Veteran's representative (via emails in January and March 2018) as to whether he desired a pre-decisional Board hearing and the representative did not respond. When considering the circumstances of this case, the Board finds that there is no outstanding hearing request. 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 Veteran if further action is required. REMAND By way of background, a January 2010 rating decision reduced the disability rating assigned for prostate cancer from 100 percent to 40 percent (later increased to 60 percent) for prostate cancer residuals. The AOJ also assigned separate noncompensable disability ratings for erectile dysfunction and a lower abdomen scar. The reduced disability rating made the Veteran ineligible for statutory SMC pursuant to 38 U.S.C. § 1114(s), which requires a service-connected disability rated as total and additional service-connected disability or disabilities independently ratable at 60 percent or more. The Veteran appealed this decision. Restoration for Prostate Cancer The AOJ's January 2010 rating decision (reducing the 100 percent disability rating for prostate cancer and assigning a 40 percent disability rating for urinary incontinence, residual of prostate cancer, from April 1, 2010) and June 2016 rating decision (increasing the assigned disability rating to 60 percent from April 1, 2010) were premised on the fact that the Veteran did not have malignant neoplasms of the genitourinary system, or essentially, active prostate cancer. In this regard, an October 2009 VA examination report stated that the Veteran had a radical prostatectomy in March 2008 and that "[t]he malignancy is in full remission for 6 month(s) with no residual." Also, an April 2016 Prostate Cancer Disability Benefits Questionnaire (DBQ) stated that the Veteran had been previously diagnosed with prostate cancer and that the current status of the disease was "remission." The Veteran's prostate cancer and residuals has been rated under Diagnostic Code 7528, which assigns a 100 percent disability rating based on malignant neoplasms of the genitourinary system. A note to the Diagnostic Code states: Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. VA treatment records obtained in April 2017 referenced biochemical recurrence. For example, a March 2017 note stated "[h]as seen outside urologist, may start chemotherapy given biochemical recurrence," included an assessment of "[history of] prostate cancer [status post] resection (2008) now with biochemical recurr[e]nce (PSA 1.02 (7/16) --> 1.17 (10/16))" and "[f]ollows with outside choice urologist...reports he had recent bone scan." The Board notes that the National Cancer Institute (part of the National Institute of Health (NIH)) defines biochemical recurrence as "[a] rise in the blood level of PSA (prostate-specific antigen) in prostate cancer patients after treatment with surgery or radiation...It may mean that the cancer has come back." See Biochemical Recurrence, National Cancer Institute, https://www.cancer.gov/publications/dictionaries/cancer-terms/def/biochemical-recurrence. In light of the VA treatment records documenting biochemical recurrence, which based on the definition cited above "may mean that the cancer has come back," the Board finds that remand is required to obtain outstanding medical records and obtain a VA opinion addressing the medical issue of whether the Veteran's prostate cancer has reoccurred. With respect to medical records, all outstanding VA treatment records must be obtained (the most recent records of record are dated in April 2017). In addition, as noted, VA treatment records referenced the Veteran as seeing a urologist through the VA Choice program. On remand, the AOJ should obtain any records available through VA records related to such treatment. In addition, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records or complete a release for such providers; if any releases are returned, the AOJ must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (2017) (stating "[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records"). In addition, VA treatment records referenced that the Veteran previously saw a urologist at a federal facility (Walter Reed Army/National Military Medical Center). See February 2013 VA Treatment Note, September 2015 VA Treatment Note. 38 C.F.R. § 3.159(c)(2) (2017) states that "VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency." As such, while on remand, the AOJ should take appropriate action to attempt to obtain any urologist records from the Walter Reed Army Medical Center, as these records may be relevant and previous attempt to obtain such does not appear to have been undertaken. Remaining Claims The Board finds that the remaining three claims are inextricably intertwined with the restoration issue being remanded and therefore also must be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). With respect to the SMC issue, if the Veteran's prostate cancer has reoccurred, a 100 percent disability rating would be warranted for prostate cancer, which would make the Veteran eligible for statutory SMC pursuant to 38 U.S.C. § 1114(s). With respect to the erectile dysfunction and lower abdomen scar rating issues, such ratings were granted by the AOJ as part of the reduction of the Veteran's disability rating for prostate cancer and may be impacted by the evidence obtained and adjudication of the restoration claim on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested.) 1. Obtain all outstanding VA treatment records (the most recent records of record are dated in April 2017). 2. Obtain any records available through VA records related to urologist treatment that the Veteran received through the VA Choice program. 3. Attempt to obtain any urologist records from the Walter Reed Army Medical Center. 4. Contact the Veteran and request that he either provides any outstanding relevant private treatment records or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. 5. After completion of the above, obtain a VA opinion. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional must provide an opinion addressing the following: a. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran has malignant neoplasms of the genitourinary system or local reoccurrence or metastasis. See 38 C.F.R. § 4.115(b) (2017), Diagnostic Code 7528. The medical professional is asked to consider and address the VA treatment records that referenced biochemical recurrence. b. If the answer to "a" is yes, the medical professional is asked to describe the nature and extent of related treatment (such as surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure). For all opinions provided, the medical professional must include the underlying reasons for any conclusions reached. 6. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).