Citation Nr: 21071434
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 15-38 586
DATE: November 30, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for prostatitis prior to October 21, 2015 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1970 to May 1972, and from July 1975 to October 1994. This appeal comes before the Board of Veterans Appeals (Board) from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2020 the Board of Veterans' Appeals (Board) issued a decision that denied an initial rating in excess of 10 percent for prostatitis prior to October 21, 2015. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a July 2021 order, the Court granted a Joint Motion for Remand and vacated the Board's decision. The matter returns to the Board for further action consistent with the Joint Motion for Remand.

 

1. Entitlement to an initial rating in excess of 10 percent for prostatitis prior to October 21, 2015 is remanded.

The Court remanded the claim back to the Board for two reasons.

First, the Court identified that the Veteran had a urology appointment in October 2013, which was identified in a December 2013 VA treatment record. However, there are no records dated from October 2013 for a urology appointment. 

The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(3). As the October 2013 record is a VA record, the Board concludes that the duty to assist was not satisfied.

Second, the Court found that the Board needed to adequately address the probative value of a June 2013 Notice of Disagreement (NOD) and a March 2013 VA medical examination report. The Court noted that the Veteran's June 2013 NOD stated that he reported that he has nighttime urgency to urinate about every 40-60 minutes.

The Court also noted the Board's reliance on the March 2013 VA examination report for the period prior to October 15, 2015, but "did not adequately explain why it was afforded high probative value. This is especially true because the Board acknowledged an inconsistency in the examination report in that the examiner documented no medication use for the condition, while treatment records indicate that [the Veteran's] prostatitis required long-term drug therapy [...] during this time on appeal."

However, the Board finds that in order to answer the second portion of the Court's JMR, the claim must be remanded in order to correct the duty to assist issue.

The matters are REMANDED for the following action:

1. Associate any outstanding VA treatment records with the file. In particular, the Board notes that the Veteran's file suggests that he had a urology appointment in October 2013. The medical reports for this appointment must be associated with this file. If the reports related to this appointment cannot be located, the Agency of Original Jurisdiction must state this and notify the parties.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, Associate 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.