Citation Nr: 21008686 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-38 143 DATE: February 17, 2021 REMANDED Entitlement to an increased disability rating for prostate cancer, to include the propriety of the reduction of the disability rating from 100 percent to 30 percent, is remanded. REASONS FOR REMAND The Veteran had active service from August 1968 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of the April 2014 the Department of Veterans Affairs (VA) Regional Office (RO) rating decision that reduced a total disability rating for the Veteran’s prostate cancer to a 30 percent rating assigned for residuals of his prostate cancer. Generally, an appeal of a rating reduction is considered a distinct and separate issue from entitlement to an increased rating. Green v. Nicholson, 21 Vet. App. 512 (2006). However, the instant appeal arises under 38 C.F.R. § 4.115b, DC 7528, which expressly folds both the rating-reduction and increased-rating issues into a single appeal. Thus, the Board has characterized the Veteran’s challenges to the reduction of his total disability rating and to the assignment of a 30 percent rating as a single claim. In June 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. During the hearing, the Veteran focused on the nexus between his prostate cancer and his kidney cancer, without reflecting on the current symptomatology of the residuals of his prostate cancer, to include his voiding dysfunction, urinary frequency, and obstructive voiding. Therefore, the only mention that the Veteran made as to his current treatment of the residuals of his prostate cancer was a statement that he was treated by a private medical practitioner, in addition to being treated at a VA facility. In October 2019, the Board remanded this matter to the RO for further development. As to the Veteran’s claim for a higher rating for residuals of his prostate cancer, the Board instructed the RO to obtain the Veteran’s medical treatment records generated by the private practitioner the Veteran mentioned during his Board hearing. In December 2019, the RO requested the Veteran to provide the information needed to obtain the private practitioner’s records. The Veteran, however, did not respond to the RO’s request. However, in August 2020, the RO associated the Veteran’s VA treatment records with the claims file. The August 2020 VA treatment records are replete with the Veteran’s reports of his constant use of absorbent materials, short daytime voiding intervals, regular awakenings to void at night (unless the Veteran takes his psychiatric and/or sedative medications that prevent him from waking up to void, and result in him experiencing incontinence), and decreased force/speed of stream. Regretfully, however, the August 2020 VA treatment records do not specify the frequency of the Veteran’s daytime voiding intervals, or the number of times he is awaking to void at night on those nights when he does not take his psychiatric and/or sedative medications, or the magnitude of incontinence he experiences if he takes these medications, or the number of times he has to change his absorbent materials during the day. Moreover, upon receipt of the Veteran’s VA treatment records, the RO neither made an inquiry with the Veteran as to these matters nor afforded him a VA examination in order to determine, with a sufficient degree of precision, the current symptomatology of the residuals of his prostate cancer. Instead, in August 2020, the RO issued a Supplemental Statement of the Case (SSOC) continuing a 30 percent rating of the residuals of the Veteran’s prostate cancer based on his continuous catheterization. The SSOC further stated that a higher rating was not warranted by the record, as accrued, since the record did not demonstrate a daytime voiding interval less than one hour or awakening to void five or more times per night, or the use of absorbent materials that had to be changed two to four times per day. However, the Veteran’s August 2020 VA treatment records are not inconsistent with the Veteran experiencing such symptoms during at least a portion of the period on appeal, even though these records do not provide the Board with information specific enough to determine whether the residuals of the Veteran’s prostate cancer are severe enough to meet the aforesaid requirements.. Accordingly, while the Board regrets additional delay, a remand is required to determine the symptoms of the residuals of the Veteran’s prostate cancer during the period on appeal with better precision. The matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person examination with an appropriate VA examiner to determine the symptoms of the residuals of the Veteran’s prostate cancer during the period on appeal. 2. The examiner is requested to address the Veteran’s use of absorbent materials (to include the frequency of the change of absorbent materials during the day), the frequency of the Veteran’s daytime voiding intervals, the frequency of his awakening to void at night (during those nights when the Veteran does not take psychiatric and/or sedative medications helping him sleep), the incontinence the Veteran experiences during those nights when he takes psychiatric and/or sedative medications helping him sleep) and the Veteran’s decreased force and/or speed of stream. 3. The VA examiner is requested to provide a complete rationale for any opinion expressed, based on his/her clinical experience, medical expertise, established medical principles, and evidence of record. 4. After completing the foregoing and any other development deemed necessary, readjudicate the Veteran’s claim for an increased rating for the residuals of his prostate cancer. 5. If any benefit sought on appeal remains denied, an SSOC should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. 6. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 7. While the law requires that all claims remanded by the Board for additional development must be handled in an expeditious manner, 38 U.S.C. §§ 5109B, 7112, in light of the COVID-19 public health measures undertaken by the Federal government, U.S. States, and municipalities, reasonable accommodations should be made to comply with these measures and ensure the safety of all participants. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan, 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.