Citation Nr: 21021785 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-05 496 DATE: April 14, 2021 REMANDED Entitlement to a disability rating higher than 40 percent for service-connected prostate cancer, to include the preliminary issue of whether the discontinuance of a 100 percent rating, effective September 1, 2014, was proper, is remanded. Entitlement to a disability rating higher than 20 percent for service-connected type II diabetes mellitus (DMII) is remanded. Entitlement to a disability rating higher than 10 percent for service-connected residuals of a cerebral infarction is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1967 to March 1970. The current appeal before the Board of Veterans’ Appeals (Board) arose from a June 2014 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) decreased the disability rating for prostate cancer from 100 percent to noncompensable (0 percent), effective September 1, 2014, continued a 20 percent disability rating for DMII, and assigned a 10 percent rating for cerebral infarction, effective December 1, 2012. The Veteran previously requested a hearing before the Board on the claims on appeal but withdrew his hearing request in January 2020 correspondence. In a March 2016 rating decision, during the pendency of the Veteran’s appeal, the RO assigned a temporary 100 percent rating for cerebral infarction from August 31, 2015, to March 31, 2016, based on the Veteran having another stroke. Also, in a July 2016 rating decision the RO assigned a 40 percent disability rating for prostate cancer, still effective September 1, 2014. Additionally, in a December 2014 rating decision, the RO granted service connection for peripheral neuropathy of the right and left lower extremities, and in a February 2015 rating decision, the RO granted service connection for bilateral diabetic retinopathy and bilateral cataracts, all as conditions related to the service-connected DMII. Also, in the July 2016 rating decision, the RO granted service connection for radiation proctitis, as associated with service-connected prostate cancer. As the Veteran has not appealed the assigned ratings for the separate disability ratings for peripheral neuropathy, bilateral diabetic retinopathy, bilateral cataracts, or radiation proctitis, those issues are not currently before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. When evidence of unemployability is received during the pendency of a claim for an increased evaluation, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Here, the record reflects that a claim for TDIU was denied in an unappealed June 2017 rating decision. Nonetheless, the Veteran has since asserted that his service-connected disabilities on appeal render him unemployable. Thus, pursuant to Rice, a claim for a TDIU is part of the appeal for higher ratings currently before the Board. Higher rating/discontinuance of 100 percent rating for prostate cancer The Board notes that the Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528, which contains a temporal element for continuance of a 100 percent rating for prostate cancer residuals. As such, RO’s action in discontinuing the 100 percent rating was not a “rating reduction” subject to the rating reduction provisions of 38 C.F.R. §§ 3.343 and 3.344. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable DC involved contained a temporal element for that 100 percent rating). In other words, the matter of the discontinuance of the 100 percent disability rating for prostate cancer is essentially a “staged” rating matter, and not a formal reduction case because of the temporal element of DC 7528. In short, the rating discontinuance in this case was procedural in nature and by operation of law. Thus, the Board only has to determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the rating discontinuance was by operation of law under DC 7528. Irrespective of whether the rating discontinuance was proper, however, the Board must also determine the appropriate rating(s) to be applied in this case throughout the appeal period. In light of evidence indicating that the Veteran’s prostate cancer has recurred, the Board finds that further development of the record is required to determine approximately when the prostate cancer recurrence became manifest. Accordingly, the Board finds that remand of this issue is warranted to afford the Veteran a new VA examination to determine the progression of his prostate cancer since prior examination in May 2016. Additionally, the evidence of record indicates that the Veteran has continued to receive regular treatment for his prostate cancer from private providers. Treatment records dated between the time of a November 2015 consultation with Kimsey Radiation Oncology, and a September 2020 consultation with B. M. C., PA, however, have not been associated with the claims file. Ms. C.’s report indicated that the Veteran had previously been seen since at least September 2019. Thus, on remand, the Agency of Original Jurisdiction (AOJ) should make reasonable efforts to obtain identified outstanding private treatment records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). Higher ratings for DMII and cerebral infarction residuals The Veteran was last afforded VA examinations to determine the severity of his service-connected cerebral infarction residuals and DMII in July 2016 and April 2017, respectively. Evidence associated with the claims file since those examinations, including lay assertions from the Veteran, indicate that these disabilities have increased in severity since the prior examinations. In this regard, in an April 2018 statement, the Veteran reported that his health continued to decline in association with his disabilities, to particularly include his DMII. Additionally, the evidence indicates that the Veteran suffered another mini stroke in August 2019, since the prior examination. Accordingly, remand is warranted to afford the Veteran contemporary VA examinations to assess the severity of his service-connected DMII and cerebral infarction residuals. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). TDIU The matter of entitlement to a TDIU is inextricably intertwined with the issues remanded herein. Notably, in various statements, including one dated in May 2017, the Veteran asserted that he had to stop working due to his disabilities, including his cerebral infarction. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Thus, consideration of entitlement to a TDIU must be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, these matters are hereby REMANDED for the following action: 1. Ask the Veteran to provide VA authorization, on VA Form 21-4142, to obtain his outstanding private treatment records from providers that have treated his claimed disabilities on appeal, including providers that treated his prostate cancer between November 2015 and September 2020, to include specifically records of treatment provided by B. M. C., PA. since at least September 2019. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Then, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected prostate cancer. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s prostate cancer and its complications, including assessing, to the extent possible, the progression of the disease since prior examination in May 2016, under the appropriate rating. Given evidence showing recurrence of prostate cancer, the examiner should also determine, to the extent possible, when the recurrence likely became manifest. 3. Also, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected cerebral infarction residuals. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected cerebral infarction residuals, including all complications, under the appropriate rating criteria, including, to the extent possible, before and since his noted mini stroke in August 2019. 4. Also, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected type II diabetes mellitus. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s DMII and its complications under the rating criteria. The examiner must also expressly state whether or not the Veteran’s diabetes mellitus requires regulation of activities based on avoidance of strenuous activities. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.