Citation Nr: 21025486
Decision Date: 04/28/21	Archive Date: 04/28/21

DOCKET NO. 14-16 487
DATE: April 28, 2021

REMANDED

Entitlement to an initial rating in excess of 60 percent prior to June 11, 2020, for the residuals of prostate cancer is remanded.

REASONS FOR REMAND

The appellant is a Veteran who served on active duty from February 1968 to February 1971.  

This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in February 2019, which granted a joint motion for partial remand (JMPR) vacating a February 2018 Board decision to the extent it denied a higher rating and remanding the matter for additional development.  The issue initially arose from an August 2013 rating decision by the Wilmington, Delaware, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The issues then on appeal were remanded for additional development in July 2019. An August 2020 rating decision granted an increased 60 percent rating for the residuals of prostate cancer effective from September 10, 2012.  The August 2020 rating decision also granted a total disability rating based upon individual unemployability (TDIU) effective from September 10, 2012.  The Board remanded the issue of entitlement to an initial rating in excess of 60 percent for residuals of prostate cancer for additional development in November 2020.  A subsequent February 2021 rating decision granted a 100 percent rating for the residuals of prostate cancer effective from June 11, 2020.  Therefore, the issue remaining for appellate review has been accordingly revised.  

1. Entitlement to an initial rating in excess of 60 percent prior to June 11, 2020, for the residuals of prostate cancer status is remanded.

The Board notes that a February 2021 supplemental statement of the case notified the Veteran and his attorney of the award of a 100 percent rating.  Observing that it had been more than six months since his prostate surgery (radical prostatectomy), the AOJ emphasized that the 100 percent rating was not a permanent evaluation, and that a mandatory examination would be ordered “at once” in order to assess the Veteran’s current residuals. The record shows that an opinion, per the Board’s remand, was obtained in February 2021, but no physical examination was performed.  There is likewise no indication that a genitourinary examination was subsequently performed.  Thus, given the immediacy that the RO placed on scheduling the Veteran for examination, a Remand is deemed necessary to obtain any updated treatment records and new examination reports.

In March 2021, prior to case being transferred for appellate review, the Veteran submitted a VA Form 20-0996 requesting a higher-level review of the February 2021 decision granting the 100 percent rating effective from June 11, 2020.  The AOJ should not have accepted that 20-0996. The partial increase of the rating for the prostate cancer was an issue in the Legacy system and is not an initial decision pursuant to 38 C.F.R. 19.2 and 3.2400.

The matter is REMANDED for the following action:

Obtain the Veteran’s additional VA treatment records pertinent to the issue on appeal, to include any reports associated with examinations conducted after February 2021.

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MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Douglas

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.