Citation Nr: 21023252 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-03 479 DATE: April 20, 2021 REMANDED The claim of entitlement to an initial rating higher than 30 percent prior to February 14, 2020, and higher than 50 percent thereafter, for adjustment disorder with anxiety and depressed mood is remanded. The appeal of the propriety of the reduction from 100 percent to 40 percent for the residuals of prostate cancer is remanded. The claim of entitlement to a rating higher than 40 percent for the residuals of prostate cancer is remanded. The claim of entitlement to a total disability rating due to individual unemployability (TDIU) prior to January 22, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to August 1972. The matters come before the Board of Veterans Appeals (Board) from August 2015 and March 2016 rating decisions of the VA Regional Office (RO). The August 2015 rating decision proposed to reduce the Veteran’s 100 percent disability rating for prostate cancer to 40 percent, effective November 1, 2015. The March 2016 rating decision granted service connection for adjustment disorder with anxiety and depressed mood and assigned an initial rating of 30 percent, effective January 22, 2016. A March 2020 increased the rating for adjustment disorder with anxiety to 50 percent and assigned a TDIU, effective February 14, 2020. In September 2019, the Veteran’s appeals regarding the rating assigned to the residuals of his prostate cancer were denied by the Board. He appealed to the U.S. Court of Appeals for Veterans Claims, which, in December 2020, remanded the appeals back to the Board pursuant to a Joint Motion for Remand (JMR). Also, in September 2019, the Board remanded the Veteran’s adjustment disorder rating for additional development. The Board finds that there has not been substantial compliance in this regard. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board regrets the additional delay, but it is necessary to preserve the Veteran’s due process rights. 1. The claim of entitlement to an initial rating higher than 30 percent prior to February 14, 2020, and higher than 50 percent thereafter, for adjustment disorder with anxiety and depressed mood, is remanded. The Board’s remand directed that updated treatment records be associated with the claims file. The claims file contains records dated through November 2019. The SSOC (supplemental statement of the case) lists that the AOJ reviewed VA treatment records through February 2020. These records, and any updated since then, must be associated with the file, followed by readjudication. 2. The appeal of the propriety of the reduction from 100 percent to 40 percent for the residuals of prostate cancer is remanded. 3. The claim of entitlement to a rating higher than 40 percent for the residuals of prostate cancer is remanded. The JMR indicated that efforts should have been made to obtain private treatment records. On remand, this must be achieved. As noted above, updated VA treatment records must also be obtained. The JMR further noted that discussion and reconciliation must be made between the April 2015 and May 2016 VA examination opinions that the Veteran’s prostate cancer was in remission and the Veteran’s VA treatment provider’s July 2015 opinion that it was not in remission but rather an active “issue/diagnosis.” A medical opinion shall be obtained following an updated examination. The record shows the Veteran has hot flashes, sleep difficulty with night sweats, and daytime fatigue, which the record suggests are a result of hormone treatment for his prostate cancer. 4. The TDIU prior to January 22, 2016, is remanded. The Veteran filed a claim for a TDIU during the pendency of the appeals of the prostate cancer and adjustment disorder ratings, and he based his claim on those two service-connected disabilities. His claim for TDIU is considered a part of his increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). TDIU was granted effective January 22, 2016, based on his disabilities meeting the schedular criteria for a TDIU effective from that date. The Veteran’s adjustment disorder claim is pending as of January 22, 2016, but the prostate cancer claim is pending as of the effective date of his reduction, November 1, 2015. Accordingly, the issue of entitlement to a TDIU prior to January 22, 2016, is deemed inextricably intertwined with the claims above and cannot be adjudicated on the merits at this time. This claim must also be remanded. The matters are REMANDED for the following action: 1. Associate updated VA treatment records with the claims file, starting from November 2019. 2. Ask the Veteran to provide authorization for VA to obtain private medical records of prostate and urology treatment, as set forth in the November 2020 JMR and the March 2021 Appellate Brief, and any other relevant treatment records. 3. Following completion of directives 1 and 2, provide the Veteran’s claim file to a qualified clinician so that an opinion may be provided to determine the current severity of the residuals of his prostate cancer. The entire claims file and a copy of this remand must be made available to the examiner for review. A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. Although an independent review of the claims file is required, the Board calls the clinician’s attention to: a. The residual complaints, including urological and his complaints of hot flashes, night sweats, trouble sleeping, and excess fatigue. b. April 2015 and May 2016 VA examination opinions noting that prostate cancer was in remission. c. The Veteran’s VA treatment provider’s July 2015 opinion that prostate cancer was, at that time, an active “issue/diagnosis.” The examiner is asked to provide an opinion on: a. The date of cessation of the Veteran’s surgical, X-ray, antineo- plastic chemotherapy, or other therapeutic procedure to treat malignant neoplasms of the genitourinary system. b. What therapies were the Veteran given, and the cessation thereof. c. Whether there has been local reoccurrence or metastasis of the Veteran’s prostate cancer. If additional examination from a different physician is required to opine on any reported symptom, notify the scheduling authority. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. N. Stevens Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.