Citation Nr: 21001691 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-44 414 DATE: January 11, 2021 REMANDED Entitlement to an evaluation in excess of 60 percent for prostate cancer is remanded. An evaluation in excess of 20 percent for residuals of a right scapula shell fragment wound to Muscle Group III is remanded. An evaluation in excess of 10 percent for residuals of a right scapula shell fragment wound to Muscle Group I is remanded. A compensable evaluation for a left ilio-inguinal nerve disability is remanded. Entitlement to special monthly compensation based on 38 U.S.C. § 1114(s) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to May 1970. In addition, he had Reserve service from June 1974 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in June 2019 denied the Veteran’s increased rating claims and awarded a claim of entitlement to a total disability rating based upon individual unemployability. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran and VA General Counsel, to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. 1. Entitlement to an evaluation in excess of 60 percent for prostate cancer is remanded. The JMPR found that the Board erred by inadequately discussing its reasons and bases for the denial of a higher evaluation for prostate cancer. Specifically, the JMPR noted that the Veteran reported that he suffered from extreme irritation and itching caused by urine laying against his skin and the use of absorbent pads. Therefore, JMPR instructed the Board to consider whether a separate compensable rating under the diagnostic code applicable to the skin is needed in order to compensate the Veteran for all the manifestations of his prostate cancer. Remand is warranted to afford the Veteran a VA skin examination and to obtain an opinion as to whether the Veteran’s reported itching and skin symptoms are related to the urinary symptoms associated with his prostate cancer. Additionally, the JMPR found that there was no indication in the records that the Board or VA attempted to obtain outstanding treatment records, as the last treatment record in the claims file was dated September 29, 2015. The JMPR directed the Board to ensure on remand that VA obtains any outstanding records. The Board notes that, since the Board decision, additional VA treatment records have been associated with the claims file. They are, however, largely copies of the VA examination reports. Moreover, one of the records refers to a previous treatment visit that is not in the claims file. Therefore, remand is warranted to obtain a complete copy of VA treatment records since September 29, 2015. This directive applies to all issues on appeal. 2. An evaluation in excess of 20 percent for residuals of a right scapula shell fragment wound to Muscle Group III is remanded. 3. An evaluation in excess of 10 percent for residuals of a right scapula shell fragment wound to Muscle Group I is remanded. With respect to the shell fragment wound evaluations, the JMPR directed the Board to obtain any missing service treatment records or determine if they cannot be obtained. The remand explained that, in the October 2018 Board hearing, the Veteran’s representative asserted that there were a lot of missing service treatment records, however, acknowledged that physicians at combat hospitals might not have written down all the information. The remand stated that given this ambiguity as to whether there are missing records and the Board’s lack of discussion of the duty to assist, remand was warranted. Additionally, the directive to obtain all outstanding treatment records applies to this issue on appeal. 4. A compensable evaluation for a left ilio-inguinal nerve disability is remanded. The directive to obtain all outstanding treatment records applies to this issue on appeal. Additionally, the JMPR noted that the Board failed to discuss reports that the Veteran had trouble bending over and that the sensation of pain, burning, and compression worsened with prolonged standing or walking. According to the JMPR, these reports indicate some impairment of motor functions that would fall outside the "wholly sensory" nature of the disability as the Board found. The JMPR also found error with the Board’s finding that the Veteran's symptoms of deep itching, so intense that he scratches until it bleeds, were related to his nerve disorder. On remand, a medical opinion should be obtained to determine whether the nature of the Veteran’s symptoms are wholly sensory, and if the deep itching is a symptom of the nerve disability, rather than a skin disability. 5. Entitlement to special monthly compensation based on 38 U.S.C. § 1114(s) is remanded. The JMPR found that the Board erred in not discussing whether TDIU was warranted solely due to PTSD or prostate cancer, potentially making him eligible to receive SMC pursuant to 38 U.S.C. § 1114(s). The JMPR found that the issue of entitlement to SMC was reasonably raised. Although there is no factual indication that the Veteran is housebound, the statutory housebound criteria may apply if the Veteran has a single service-connected disability rated as 100 percent and, has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. The issue is inextricably intertwined with the issue of the evaluation of prostate cancer and the directive to obtain updated treatment records. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and provide authorization to obtain any outstanding, relevant treatment records for all his service-connected disabilities, including PTSD and prostate cancer. After securing the necessary authorization, these records should be requested. Negative replies must be documented. If any records are not available, the Veteran should be notified of such. 2. Obtain and associate with the claims file all outstanding VA treatment records with respect to all service-connected conditions since September 29, 2015. 3. Obtain any outstanding service treatment records associated with the Veteran’s August 1969 shell fragment wound, including records of any inpatient treatment at a hospital in or associated with the 3rd Medical Battalion in Vietnam from in August 1969. Document all requests for information as well as all responses in the claims file. 4. Schedule the Veteran for an examination by an appropriate clinician to evaluate the Veteran’s skin disability, pursuant to the JMPR, which noted that the Veteran reported extreme irritation and itching caused by urine laying against his skin and the use of pads, connected with his service-connected prostate cancer. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must also opine as to whether any skin disability (including itching and irritation to where he scratches to the point of bleeding) is a symptom or a residual of another service-connected disability, including the result of urine from absorbent materials contacting his skin, or his service-connected left ilio-inguinal nerve neuralgia, status post radical prostatectomy. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Obtain a medical opinion from an appropriate clinician regarding the Veteran’s left ilio-inguinal nerve neuralgia. The examiner must opine as follows: (a.) Whether the Veteran has impairment of motor function and what degree of severity any such motor function impairment causes on his ilio-inguinal nerve disability. In rendering this opinion, the examiner is asked to consider the Veteran’s reports of trouble bending over and that the sensation of pain, burning, and compression worsened with prolonged standing or walking indicate some impairment of motor function. (b.) Whether the Veteran's symptoms of deep itching, so intense that he scratches until it bleeds, are related to his nerve disorder, rather than a skin disorder. The examiner must consider all lay statements as well as medical evidence, including the Veteran’s and his wife’s October 2018 Board hearing testimony, where the Veteran’s wife reported that he scratches so much at night that it bleeds and that he had some topical cream to try to calm it down, and the Veteran testified that his itching is not on the skin surface, but rather, way down under the skin. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   6. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal, including the inextricably intertwined issue of entitlement to Special Monthly Compensation. 7. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.