Citation Nr: 21005728 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-03 631 DATE: February 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for prostate cancer residuals prior to September 21, 2017 and in excess of 20 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1967 to January 1969, including service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge, Bronze Star Medal, and Purple Heart. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran and his spouse testified before the undersigned Veterans Law Judge. In June 2017 and September 2019, the Board remanded the appeal for further development. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for prostate cancer residuals prior to September 21, 2017 and in excess of 20 percent thereafter is remanded. Unfortunately, another remand is required. In February 2020, the Veteran underwent VA prostate cancer and rectum examinations. The examiner attributed the Veteran’s proctitis, rectal urgency, and intermittent incontinence to treatment for his prostate cancer. He has since been separately awarded service connection for impairment of rectal sphincter control (which includes urgency). However, the February 2020 examiner’s opinions regarding the Veteran’s chronic proctitis condition (noting erythematous mucosa was a symptom of the same), chronic prostatitis, hemorrhoids, polyps and the ability to exercise were either speculative, contradictory, conclusory, or vague. See February 2020 Prostate and Rectum Medical Opinions; February 2020 VA Clarification Addendum Medical Opinion. As such, the Board finds the February 2020 Prostate and Rectum Medical Opinion to be inadequate, and an addendum opinion is required on remand. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to a TDIU, to include extraschedular, is remanded. The Veteran initially asserted that his service-connected residuals from prostate cancer precluded him from obtaining and maintaining gainful employment since 2008. See, e.g., November 2014 NOD; April 2017 Board Hearing Testimony, pgs. 12-15; July 2017 VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. However as of his most recent February 2020 VA examination, the examiner documented that “the Veteran is adamant that he is not claiming individual unemployability.” Despite this statement from the Veteran, his representative continued to assert TDIU in an October 2020 brief. Given this conflicting information, the Board will defer adjudication of the TDIU issue and clarify if he still wishes to pursue this matter on remand. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. Contact the Veteran and clarify as to whether he wishes to pursue a TDIU, advising him that his representative has presented argument on the matter as recently as October 2020. Provide him with a VA Form 21-8940 and ask that if he is pursuing a TDIU, to complete the same with updated information, and if not, to not respond. 3. Then refer the claims file to an examiner other than February 2020/September 2020 VA examiner, preferably a physician, for preparation of an addendum opinion as to the etiology of the Veteran’s prostate cancer residuals. The entire claims file should be made available to the examiner. No additional examination is necessary unless the examiner determines otherwise. Following the review of the claims file, the examiner should opine the following, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that: (a) radiating proctitis with erythematous mucosa is (1) proximately due to his service-connected prostate cancer residuals; or (2) has been aggravated (worsened beyond natural progression) by his service-connected prostate cancer residuals; (b) constant aching colon and muscle pain is (1) proximately due to his service-connected prostate cancer residuals; or (2) has been aggravated (worsened beyond natural progression) by his service-connected prostate cancer residuals; (c) hemorrhoids are (1) proximately due to his service-connected prostate cancer residuals; or (2) have been aggravated (worsened beyond natural progression) by his service-connected prostate cancer residuals; (d) colon polyps are (1) proximately due to his service-connected prostate cancer residuals; or (2) have been aggravated (worsened beyond natural progression) by his service-connected prostate cancer residuals; and (e) the inability to exercise or sit on hard surfaces is (1) proximately due to his service-connected prostate cancer residuals; or (2) have been aggravated (worsened beyond natural progression) by his service-connected prostate cancer residuals; (see April 2013, November 2014, December 2015, and July 2017 Veteran’s Statements). In addressing these questions, please note there is no temporal requirement that the primary condition (prostate cancer) be service-connected, or even diagnosed, at the time the secondary conditions (constant aching colon and muscle pain, hemorrhoids, colon polyps, and the inability to exercise or sit on hard surfaces) are incurred, and reliance on this fact will render any opinion inadequate. Additionally, in addressing these questions, please discuss: (1) the Veteran’s statement he is unable to drive more than two hours before voiding or having the colon ache (see March 2013 and December 2015 Veteran’s Statements); (2) the Veteran’s reporting of the inability to sit on hard surfaces, the necessity to use a “donut” and how he cannot bicycle, jog or walk without pain radiating down into his legs (see id.; April 2017 Board Hearing Transcript, pg. 12); (3) the Veteran’s reporting of turning down investigation that require extensive surveillances and subject interview because of voiding, hemorrhoids and chronic ache in his colon (see September 2017 Veteran’s Statement); (4) the Veteran’s spouse’s statement regarding the Veteran’s episodes of wetting their bed (see July 2017 Spouse’s Statement); (5) the Veteran’s spouse’s testimony regarding her husband’s inability to sit or walk for any length of time without horrible pain that radiates down his legs (see April 2017 Board Hearing Transcript, pg. 15); and (6) the Veteran’s excerpts from the “The Mayo Clinic Health Risks” indicating side effects of external beam radiation therapy for prostate cancer may include: frequent urination (see http://www.mayoclinic.com/health/external-beam-radiation-for-prostate-cancer/MY01632). In addressing these questions, the examiner must assume items (1) to (5) as true, even despite the absence of “objective documentation,” and state whether the Veteran’s residuals from prostate cancer are “medically consistent” with the symptomatology reported by the Veteran and his spouse in items (1) to (5) above. Please provide a complete rationale based on medical principles to support any conclusions reached. If unable to opine without speculation, please support your conclusion in this regard If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the ability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria L. Stephens 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.