Citation Nr: 21010118 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-18 724A DATE: February 24, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent prior to June 15, 2017, and in excess of 60 percent from that date, for prostate cancer is remanded. A total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to May 1973, and from August 1979 to July 1992. He died in November 2017; the Appellant is his surviving spouse. The appellant submitted a request for substitution in January 2018. Although the record does not include a specific finding that the appellant is the proper substitute, the Agency of Original Jurisdiction (AOJ) has essentially treated her as such. Since the claim is being remanded, the AOJ should make a specific determination and include it in the record. The Board most recently remanded the claims in June 2018 for further development. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an increased rating, in excess of 20 percent prior to June 15, 2017, and in excess of 60 percent from that date, for prostate cancer is remanded. The June 2018 examination is inadequate because the medical examiner did not have access to all available medical records. The June 2018 examination was conducted just before the June 2018 Board remand and development the Board directed be done prior to obtaining a medical opinion was not done. The June 2018 remand directives included requesting treatment records from specific providers (Georgia Urology and the Atlanta Metro Urology Clinic) in order for the examiner to address whether the Veteran had active disease following his 2008 radical prostatectomy. 2. Entitlement to TDIU is remanded. The TDIU claim is inextricably intertwined with the increased rating claim and adjudication of that issue will be deferred until the issue of increased rating is decided. The matters are REMANDED for the following action: 1. Make a specific finding as to whether the appellant is the proper substitute and include that determination in the record. See her January 2018 request for substitution and the May 30, 2018 Deferred Rating Decision. 2. Contact the appellant, and, with the appellant’s assistance identify and obtain copies of any pertinent medical or VA treatment records since August 2008 and add them to the claims file, to include Georgia Urology and the Atlanta Metro Urology Clinic, and any other private facility in which the Veteran obtained treatment. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified. 3. After the above development, obtain a retrospective medial opinion from an appropriate clinician that considers whether it is at least as likely as not that the veteran had active cancer following the 2008 radical prostatectomy. A review of outpatient treatment reports from the Atlanta VAMC and the Veteran's death certificate show prostate cancer. The DBQ dated June 15, 2017 shows that the Veteran had a radical prostatectomy but does not state whether the veteran had active cancer at that time. 4. After the above development, obtain a retrospective medial opinion from an appropriate clinician that specifically addresses the functional impact of the Veteran’s service-connected disabilities. The examiner must reference the prior medical opinion noting the periods in which the Veteran had active prostate cancer; and the periods in which the Veteran had prostate cancer residuals, if applicable. In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran’s service-connected prostate cancer, to include any potential medications he may have taken for his disabilities. The examiner should also consider and addressed the Veteran’s certified incompetency other service-connected disabilities. Such impairments include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement TDIU. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.