Citation Nr: 21028426 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-61 955 DATE: May 11, 2021 REMANDED The propriety of the reduction in the rating for prostate cancer from 100 percent to 40 percent, effective August 1, 2015, and from 40 percent to 20 percent, effective December 1, 2017, is remanded. Entitlement to a disability rating in excess of 40 percent for residuals of prostate cancer, prior to December 1, 2017, and in excess of 20 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from July 1968 to July 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in a July 2012 rating decision, the RO granted service connection for prostate cancer and assigned a disability rating of 100 percent, effective May 14, 2012. In a February 2015 letter, the RO proposed to reduce the evaluation for prostate cancer to 40 percent. In a May 2015 rating decision, the RO reduced the rating for prostate cancer to 40 percent, effective August 1, 2015. In July 2016, the Veteran filed a notice of disagreement (NOD), appealing the propriety of the reduction. Then, in a July 2017 letter, the RO proposed to further reduce the evaluation for the Veteran's prostate cancer to 20 percent. In a September 2017 rating decision, the RO reduced the rating for prostate cancer to 20 percent, effective December 1, 2017. The issues have been characterized accordingly on the title page. In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. When evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, during the March 2021 Board hearing, the Veteran testified that he "kind of retired early" due to his voiding dysfunction as a result of his service-connected prostate cancer. He indicated that he felt embarrassed and bad that he spent more time in the bathroom than working. As such, the Board finds that the Veteran's statements regarding his need to retire early due at least in part to his service-connected disability have reasonably raised the issue of a TDIU. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. The propriety of the reduction in the rating for prostate cancer from 100 percent to 40 percent, effective August 1, 2015, and from 40 percent to 20 percent, effective December 1, 2017, is remanded. See Argument Below 2. Entitlement to a disability rating in excess of 40 percent for residuals of prostate cancer, prior to December 1, 2017, and in excess of 20 percent thereafter is remanded. As previously discussed, following the May 2015 rating decision in which the RO reduced the rating for the Veteran's prostate cancer from 100 percent to 40 percent, effective August 1, 2015, the Veteran appealed the propriety of the reduction in July 2016. Subsequently, the Agency of Original Jurisdiction (AOJ) issued a statement of the case (SOC) in November 2016 in which it denied a rating in excess of 40 percent for the Veteran's prostate cancer residuals. In a September 2017 rating decision, the RO again reduced the rating for prostate cancer from 40 percent to 20 percent, effective December 1, 2017. Following the subsequent reduction, a supplemental statement of the case (SSOC) was issued in September 2017, which denied a rating in excess of 20 percent for the Veteran's prostate cancer residuals. The issue of entitlement to restoration of a reduced rating is distinct from the issue of entitlement to an increased rating for the same disability, which is addressed below. The United States Court of Appeals for Veterans Claims (Court) has emphasized that rating reduction cases are separate from rating increase cases. Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Therefore, the Board notes as these are two separate issues of increased rating for the Veteran's prostate cancer and the propriety of the Veteran's rating reductions, the Board will address these in turn. First, with regards to the Veteran's rating reductions, the Board notes that after the final reduction to a 40 percent rating in the May 2015 rating decision, the Veteran filed a NOD to the propriety of such reduction. Furthermore, following the final reduction to a 20 percent rating in the September 2017 rating decision, the Veteran's representative contested the propriety of the reduction. See September 2017 VA Form 646, Statement of Accredited Representative in Appealed Case. As such, the Board finds that with regards to the claim of challenging the propriety of the Veteran's rating reductions, the Veteran has provided a timely NOD to its initial reduction decision in May 2015. A SOC was associated with the claims file in November 2016; however, the RO did not address the propriety of the reduction in that SOC, adjudicating the claim only as one for an increased rating. Furthermore, following the subsequent rating reduction from 40 percent to 20 percent, a SSOC was associated with he claims file in September 2017. Again, the RO did not address the propriety of the reduction, adjudicating the claim only as one for an increased rating. Because the RO did not properly address the Veteran's NOD, the Board finds that a SOC remains in want. Therefore, the Board is required to remand the claim for issuance of a SOC addressing the specific issues of the propriety of the Veteran's rating reductions. As regards to the Veteran's claim for increased rating for his prostate cancer residuals, there is evidence of worsening since the most recent VA examination in June 2017. See March 2021 Hearing Transcript at pg. 12. As it has been nearly four years since the Veteran has been provided with a VA examination concerning the rating of the prostate cancer and there is an assertion of worsening symptomatology, a remand is warranted to ensure that the record contains evidence of the current severity of the Veteran's service-connected prostate cancer. Furthermore, as the Veteran's claim contesting the propriety of the rating reductions is being remanded for further development, the Board finds that such development could significantly affect the claim for increased rating. Consequently, as the development of this ancillary claim could affect the claim for increased rating, the claim must be considered inextricably intertwined and remand is also required. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to a TDIU is remanded. As previously indicated, the Board finds that entitlement to a TDIU has been raised by the record. Rice, 22 Vet. App. at 453-54. The Board further finds that the issue of the Veteran's entitlement to a TDIU is inextricably intertwined with the issues remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned appeal. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Furthermore, the Veteran should be given the opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran's employment status throughout the relevant period, education, and service-connected limitations. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Issue a statement of the case (SOC) addressing the issue of the propriety of the rating reduction for the Veteran's service-connected prostate cancer from 100 percent to 40 percent, effective August 1, 2015. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 3. If the SOC is not favorable to the Veteran, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected residuals of prostate cancer. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner is requested to identify all residuals of the service-connected residuals of prostate cancer. The discussion must include description of any symptoms of urinary incontinence, urinary frequency, and obstructed voiding, and state the frequency and severity, if present. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Provide the Veteran with appropriate notice of VA's duties to notify and assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide the Veteran with a copy of VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU and request that he supply the requisite information. 5. After completing all indicated development, the Veteran's claims should be readjudicated, to include the issue of entitlement to a TDIU, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.