Citation Nr: 21005225 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 12-21 524 DATE: January 29, 2021 REMANDED The issue of entitlement to an extraschedular rating for residuals of prostate cancer, status post-brachytherapy, rated as 60 percent disabling for the period from March 1, 2011 to June 28, 2012, and 40 percent disabling thereafter, is remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from August 1969 to November 1974. This matter come before the Board of Veterans’ Appeals (Board) from a December 2010 rating decision which reduced the rating for prostate cancer from 100 percent disabling to 40 percent disabling, effective March 1, 2011. In a February 2015 decision, the Board denied restoration of a 100 percent disability rating for service-connected prostate cancer, effective March 1, 2011. The Board allowed a 60 percent rating for prostate cancer for the period from March 1, 2011, to June 28, 2012, and denied a rating in excess of 40 percent from June 29, 2012. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the portion of the Board’s decision that denied higher ratings for prostate cancer and dismissed the issue of whether a reduction from 100 percent was appropriate. The Board remanded this matter in September 2016 for additional development in compliance with the Joint Motion. In a June 2017 decision, the Board denied increased ratings in excess of 60 percent for prostate cancer, status-post brachytherapy for the period from March 1, 2011 to June 28, 2012 and in excess of 40 percent thereafter. The Board also declined to refer the increased ratings issues for extraschedular consideration. The Veteran appealed the Board’s June 2017 decision the Court. By a May 2018 Order, the Court, pursuant to a joint motion for partial remand (JMPR), vacated the Board’s June 2017 decision to the extent that it had failed to refer an extraschedular rating under 38 C.F.R. § 3.321(b)(1) for the service-connected prostate cancer, status-post brachytherapy; and remanded the matter for action consistent with the JMPR. The JMPR also noted that the Veteran was not pursuing the issues of entitlement to an increased schedular ratings for the periods on appeal, and that those issues should be dismissed. In February 2019, the Board remanded the issue of entitlement to an extraschedular rating for the Veteran’s prostate residuals for referral to the Director of Compensation Services. Although the requested opinion was obtained in November 2020, unfortunately, the Board finds that further remand is necessary. In this regard, it appears that a concern of the parties to the two JMPRs was whether all the Veteran’s prostate cancer residuals were contemplated by the rating criteria. Specifically, the parties pointed to the Veteran’s October 2011 and December 2011 reports of bladder pain and dysuria (painful urination), as well as a general complaint of abdominal pain during an October 2010 examination, which are not specifically contemplated by the relevant diagnostic code for prostate cancer. 38 C.F.R. § 4.115b, Diagnostic Code 7528. However, that issue was not addressed by the November 2020 extraschedular opinion. Parenthetically, the Board points out that bladder and urinary disabilities are generally also rated by voiding dysfunction, which is also how the Veteran’s prostate cancer residuals are rated. Nevertheless, it is unclear from the record whether the Veteran has a current bladder disability, abdominal disability, or dysuria that is a residual of his prostate cancer, and the record is silent regarding the current nature or severity of any such disability. Indeed, the Veteran has not been examined since June 2012, and while he reported bladder pain and dysuria in 2011, the subsequent record is generally silent for similar reports, or shows affirmative denials of urinary complaints. Thus, the Board finds that an examination is necessary. On remand, updated relevant treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated and outstanding relevant VA and private treatment records. 2. Then, schedule the Veteran for an examination to address his complaints of abdominal pain, bladder pain, and dysuria. Following examination of the Veteran and a review of the claims file, the examiner should respond to the following: (a) State whether it is at least as likely as not (50 percent probability or greater) that any abdominal pain, bladder pain, or dysuria is a residual of the Veteran’s prostate cancer. In addition to any current abdominal pain, bladder pain, or dysuria complaints on examination, the examiner should also consider the Veteran’s report of abdominal pain and finding of an enlarged tender bladder during an October 2010 examination; his reports of occasional dysuria in 2011 VA treatment notes; his reports of persistent bladder pain and painful urination during an October 2011 examination; and, his December 2011 statement reporting painful urination. (b) For any abdominal pain, bladder pain, and/or dysuria found to be a residual of the Veteran’s prostate cancer, provide a full description of symptom, to include the frequency, severity, and duration. (c) For any abdominal pain, bladder pain, and/or dysuria found to be a residual of the Veteran’s prostate cancer, identify the extent of any social, occupational, or functional impairment caused by the symptom(s). A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).] S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.