Citation Nr: 21010059 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-26 129 DATE: February 24, 2021 REMANDED Whether the reduction of the 100 percent evaluation for prostate cancer from 100 percent to 60 percent, effective April 1, 2016, was proper is remanded. Entitlement to an increased evaluation in excess of 60 percent for prostate cancer is remanded. Entitlement to an initial evaluation in excess of 50 percent for depressive disorder with adjustment-like disorder and unspecified smoking-related disorder 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 October 1967to April 1979. In September 2019, the Board of Veterans’ Appeals (Board) decided the issues addressed in this decision. The Veteran appealed. In a September 2020 Joint Motion for Remand (JMFR), Court of Appeals for Veterans Claims (CAVC) remanded the claims finding the following: first, the Board failed to satisfy their duty to assist because the Board did not assist the Veteran in obtaining the updated private treatment records from Spectrum Health for the period after March 11, 2010 as it pertains to the Veteran’s above disorders; second, the Board failed to obtain the Veteran’s VA mental health treatment records after November 2017; third, the Board failed to reconcile inconsistent findings in its analysis as to whether the Veteran is to secure and follow substantially gainful employment; lastly, the Board failed to address whether the Veteran had withdrawn his request for a hearing for the issues above on appeal. Review of the record reveals that is a May 2017 substantive appeal, signed by his representative, a Travel Board hearing was requested. Issues were said to involve the rating for the prostate cancer and a total rating. In a subsequent document of October 2017, labeled as a notice of disagreement, it was requested that a Decision Review Officer enter a decision based on the evidence of record, without a personal hearing. The two prior issues as well as an increased rating for a psychiatric disorder were listed. Subsequently a substantive appeal of January 2018, signed by the Veteran’s representative was received, said to appeal all issues, and no hearing was requested. If the Veteran desires a hearing before the Board, he or his representative should affirmatively make such request while the case is in Remand status. If no such request is made, the hearing request will be deemed to have been withdrawn. 1. Whether the reduction of the 100 percent evaluation for prostate cancer from 100 percent to 60 percent, effective April 1, 2016, was proper is remanded. 2. Entitlement to an increased evaluation in excess of 60 percent for prostate cancer is remanded. The Veteran contends that the reduction of the 100 percent evaluation for his service connected prostate cancer to 60 percent is improper. The Veteran also contends that he is entitled to an increased evaluation in excess of 60 percent for his service connected prostate cancer. As noted above a remand is necessary to obtain the Veteran’s private treatment records from Spectrum Health for the period after March 11, 2010 which reportedly include documentation related to the Veteran’s service connected prostate cancer. His assistance in obtaining the records should be requested as needed, Any other pertinent records identified should also be obtained. If after the records are obtained and reviewed, it is determined that an additional examination or addendum opinion is needed, in should be requested in accordance with applicable procedures. 3. Entitlement to an initial evaluation in excess of 50 percent for depressive disorder with adjustment-like disorder and unspecified smoking-related disorder is remanded. The Veteran contends that he is entitled to an initial evaluation in excess of 50 percent for depressive disorder with adjustment-like disorder and unspecified smoking-related disorder. As noted above a remand is necessary to collect the Veteran’s VA mental health treatment records after November 2017 which includes documentation related to the Veteran’s depression disorder. The Veteran’s assistance in identifying these records and any other pertinent records should be requested as needed. If, after the records are obtained and reviewed, it is determined that additional examination or addendum opinion is needed, it should be requested. 4. Entitlement to a total disability rating based on individual unemployability is remanded. The Veteran contends that since June 1, 2010, the severity of his service connected disorders render him totally disabled based on individual unemployability. While the Board remands the issue above, those decisions may impact his claim for a TDIU. As such, these issues are potentially inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, adjudication of the TDIU claim is remanded. The Board makes no credibility determination, expressed or implied, at this juncture. The matters are REMANDED for the following action: 1. As necessary, ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. Specifically, an effort should be made to collect the Veteran’s private treatment records from Spectrum Health for the period after March 11, 2010 which includes documentation related to the Veteran’s service connected prostate cancer. Additionally, an effort should be made to collect the Veteran’s VA outpatient treatment records after November 2017 which includes documentation related to the Veteran’s depression disorder. If any of these records sought are not available, the record should be annotated to reflect that fact, and the Veteran and is representative should be notified. All attempts to obtain records should be documented in the claims file. 2. After the records above are obtained to the extent possible, and reviewed, determine whether new examinations or addendum opinions are needed. As appropriate, return the Veteran’s claims file to each examiner who conducted the prior VA examination for the Veteran’s above disorders so a supplemental opinion may be provided. If an examiner is no longer available, or anew examination is deemed necessary, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file must be made available to each examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a thorough review of the medical history the examiner is requested to prepare a detailed opinion for the following: (a) (For the prostate cancer examiner); Discuss all symptoms and manifestations associated with the Veteran’s prostate disorder and set out functional and occupational impairments. All clinical findings should be set out in detail. Specific detail should be given to the Spectrum Health prostate treatment records submitted after March 11, 2010. (b) (For the psychiatric examiner); Discuss all symptoms and manifestations associated with the Veteran’s depressive disorder with adjustment-like disorder and unspecified smoking-related disorder and set out any functional and occupational impairments. All clinical findings should be set out in detail. Specific detail should be given to the VA outpatient mental health treatment records submitted after November 2017. (c) Concerning the Veteran’s TDIU claim, develop and adjudicate the issue of TDIU to include consideration of the current disability ratings and overall impairment. Please provide a complete rationale for all opinions entered and review the entire record including lay statements and hearing testimony.   If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.