Citation Nr: 21074898 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-03 227 DATE: December 16, 2021 REMANDED Whether the reduction in the evaluation for residuals of prostate cancer from 100 percent to 60 percent was proper from April 1, 2016, is remanded. Entitlement to a disability rating in excess of 60 percent for residuals of prostate cancer for the period from April 1, 2016, and thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1965 to March 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2016 and an April 2021 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). In June 2020, the Veteran appeared for a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript has been associated with the claims file. In July 2021, the Board remanded the claims on appeal for additional development. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. 1. Whether the reduction in the evaluation for residuals of prostate cancer from 100 percent to 60 percent was proper from April 1, 2016, is remanded. 2. Entitlement to a disability rating in excess of 60 percent for residuals of prostate cancer for the period from April 1, 2016, and thereafter, is remanded. In the October 2020 Board decision, the Board remanded the Veteran's claim to obtain outstanding private treatment records. More specifically, during the June 2020 hearing, the Veteran indicated he received treatment from private providers, to include his primary care physician, Dr. M, and his urologist, Dr. H. Further, the Veteran identified radiation treatment performed by Dr. R.S. In reviewing the claims file, however, the AOJ only completely processed an authorization form for Dr. H. There was not sufficient follow-up for the authorization for Dr. R.S. Therefore, there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Another remand is required to obtain these records. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Board remanded the claims for a new VA examination to address the current severity of the Veteran's service-connected prostate disability, following the above development. Specifically, the Board noted that there are indications of renal dysfunction and rectal dysfunction which may be related to the Veteran's prostate condition and/or radiation proctitis. In November 2020, prior to the required development, the Veteran was provided a VA examination to determine the current severity of the Veteran's service-connected prostate disability. However, as required by the previous remand instructions, the entire record, including the discussed private treatment records, where not available for review. Further, the examiner did not speak with the Veteran regarding the Veteran's current symptoms. Thus, it is unclear from the record the current severity of the Veteran's service-connected prostate disability, including voiding dysfunction, rectal dysfunction and/or renal dysfunction. As such a new VA examination to assess the current severity of his service-connected disability is warranted. The Board further notes the Veteran's argument that the AOJ has not addressed his argument that the AOJ improperly reduced his 100 percent rating without examination or a specific finding of material improvement. However, the particular disorder at hand involves prostate cancer evaluated under Diagnostic Code 7528 which does not involve a typical rating reduction claim, but rather a mandatory cessation of the 100 percent rating when certain conditions (cessation of treatment with no local recurrence or metastasis) or met. See Tatum v. Shinseki, 24 Vet. App. 139 (2010). 3. Entitlement to a TDIU is remanded. The Veteran seeks entitlement to a TDIU. In the October 2020 Board decision, the Board found that an inferred claim of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). On remand, the Board requested the AOJ notify the Veteran of what information or evidence is needed in order to substantiate the claim of entitlement to a TDIU. And invite him to provide any additional information which he believes may be relevant to his TDIU claim. Specifically, the AOJ should advise the Veteran to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). In October 2020, the AOJ sent the Veteran a standardized letter soliciting a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), as well as a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) for each employer included on the VA Form 21-8940. The Veteran did not submit the requested forms. In the April 2021 rating decision, the AOJ denied the Veteran's claim for a TDIU because the Veteran failed to submit the VA Form 21-8940. The Board acknowledges the Veteran did not respond to the AOJ's October 2020 request, however, in light of the Board's remand of the issue of the propriety of the disability rating for the prostate disability, the Board finds that the claim of entitlement to a TDIU must also be remanded again. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177-78 (2009) (en banc). The Veteran is advised he must cooperate with the AOJ's efforts to develop such evidence, or he will subject himself to having the issue on appeal adjudicated based on the evidence of record, which is currently insufficient to award the benefit sought. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (indicating the duty to assist is not always a one-way street). Lastly, the Board notes that the Veteran's representative raised the argument that a VA Form 21-8940 is not needed because the evidence of record contains the information needed to adjudicate the claim. See November 2021 Appellate Brief. However, within the same document, the Veteran's representative states that the Veteran has not worked since 1978, but during the June 2020 hearing, the Veteran indicated that he stopped working in 2013 and has wanted to return to work but is unable to due to limitations related to his prostate disability. Therefore, a remand is necessary to obtain a VA Form 21-8940 to clarify/verify the Veteran's employment history. The matters are REMANDED for the following action: 1. Notify the Veteran of what information or evidence is needed in order to substantiate the claim of entitlement to a TDIU. Invite him to provide any additional information which he believes may be relevant to his TDIU claim. Specifically, the AOJ should advise the Veteran to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Associate with the claims folder updated VA treatment records. 3. Ask the Veteran to complete a VA Form 21-4142 for the Veteran's private physician and urologist, specifically all records from Dr. M and Dr. R.S as well as Dr. S. of Breckinridge. Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. These private treatment records should be obtained and associated with the claims folder. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to assess the nature and severity of his prostate cancer disability and any residuals thereof. The electronic record must be made available to the examiner. The examiner is requested to specifically address the following question: Describe in detail the nature and severity of any residual condition attributable to prostate cancer, including but not limited to radiation proctitis, voiding dysfunction, rectal dysfunction and/or renal dysfunction. In so doing, the examiner is requested to consider the following evidence: VA clinic records reflecting an assessment of mild renal insufficiency (see VA clinic record dated August 22, 2018) as well as fecal/urinary incontinence status post prostate removal; the June 2020 hearing testimony, wherein the Veteran describes experiencing fecal and urinary incontinence; a June 2021 VA treatment record reflecting a prescription of underwear liners based on an assessment of radiation proctitis post tx for prostate cancer; and the Veteran submitted articles; wherein fecal incontinence is discussed as a side effect of radiation treatment for prostate cancer. A rationale must be provided for any opinion provided. 5. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.