Citation Nr: 18131230
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-21 426
DATE:	August 31, 2018
REMANDED
1. Entitlement to service connection for residuals of cancer of the renal pelvis, to include as due to Agent Orange exposure and claimed as secondary to service-connected prostate cancer, is remanded.
2. Entitlement to increases in the (10 percent prior to June 17, 2014, 20 percent from June 17, 2014 to February 16, 2015, and 30 percent from April 1, 2016) ratings for a right knee disability is remanded.  
3. Entitlement to a rating in excess of 30 percent for coronary artery disease (CAD) from October 1, 2012, is remanded.
4. Entitlement to a rating in excess of 20 percent for type 2 diabetes mellitus is remanded. 
5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. 
REASONS FOR REMAND
The appellant is a Veteran who served on active duty from October 1966 to July 1968.  This case is before the Board of Veterans’ Appeals (Board) on appeal from various Department of Veterans Affairs (VA) Regional Office (RO) rating decisions in October 2011 (that denied service connection for renal pelvis cancer residuals), June 2013 (granted service connection for CAD, rated 30 percent), August 2013 (denied a rating in excess of 10 percent for right knee disability), and April 2015 (granted service connection for type 2 diabetes mellitus, rated 20 percent).  
A May 2014 rating decision granted a temporary total (100 percent) rating for CAD from August 28, 2012 to October 1, 2012, and assigned a 30 percent rating from October 1, 2012.  November 2014 and November 2015 rating decisions increase the ratings for the right knee disability as follows:  20 percent from June 17, 2014 to February 16, 2015, 100 percent rating from February 16, 2015 to April 1, 2016 for (and following) knee replacement surgery, and 30 percent from April 1, 2016.  
A November 2016 Board decision denied a rating in excess of 30 percent for CAD from October 1, 2012, and remanded the three other issues on appeal to the RO for additional development.  The Veteran appealed the Board decision regarding the CAD matter to the United States Court of Appeals (CAVC), which in a July 2017 Order granted a July 2017 Joint Motion for Remand (JMR) by the parties, and vacated the Board’s decision as to the CAD issue, remanding the matter to the Board for action consistent with the JMR.  
The TDIU issue has been added to the appeal because a TDIU claim is part of an increased rating claim when such claim is asserted by the Veteran or raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In March 2018, the Veteran’s VA Vocational Rehabilitation and Employment (VR&E) file was added to the claims file, showing that he sought and was denied vocational rehabilitation benefits in August 2014 (during the pendency of the appeal) on the basis that his physical restrictions were severe and did not permit a full-time work schedule.  Further, a February 2017 VA examination found that the Veteran’s right knee disability would prevent him from engaging in employment requiring prolonged standing or walking.  
1.  Entitlement to service connection for residuals of cancer of the renal pelvis, to include as due to exposure to Agent Orange and claimed as secondary to service-connected prostate cancer is remanded.
In November 2016, the Board remanded this matter for a VA examination and medical opinion addressing whether there was any evidence of aggravation of the Veteran’s renal pelvis cancer residuals by his “service-connected prostate cancer residuals.”  The Board noted that residual manifestations of each type of cancer could include voiding dysfunction, and that a medical opinion addressing a potential relationship was needed.  A February 2017 VA genitourinary examination found that the Veteran had voiding dysfunction as a residual of prostate cancer treatment (radical prostatectomy); but the medical opinion regarding whether such residuals aggravated renal pelvis cancer residuals is inadequate because the rationale is incomplete.  The examiner merely stated that there is no evidence of aggravation, and that both cancers were in remission.  There was no discussion of the current residuals of each cancer, and whether (and if so, the degree to which) prostate cancer residuals impact on renal pelvis cancer residuals.  An addendum opinion is necessary.  
2.  Entitlement to increases in the (10 percent prior to June 17, 2014, 20 percent from June 17, 2014 to February 16, 2015, and 30 percent from April 1, 2016) ratings assigned for a right knee disability is remanded; 
3. Entitlement to a rating in excess of 30 percent for CAD from October 1, 2012 is remanded; and
4. Entitlement to a rating in excess of 20 percent for type 2 diabetes mellitus is remanded.  
Additional evidence was associated with the Veteran’s claims file since the November 2017 issuance of a statement of the case (SOC) addressing the diabetes mellitus claim and the supplemental SOC addressing the right knee disability and renal pelvis cancer residuals claims.  In June 2018, the Board informed the Veteran that his VA VR&E records had been received, and that such evidence had not been considered in a decision by the RO.  He was notified that he had a right to have the evidence reviewed by the RO before the Board reviewed it, or he could waive such right by submitting a written waiver.  In July 2018, he responded that he wished to have the case sent back to the RO for review of the additional evidence.  As the evidence is relevant to the three increased rating claims on appeal, those matters must be remanded for RO initial consideration [of the additional evidence].  
Regarding the CAD claim, additional pertinent VA outpatient treatment records have been associated with the claims file since the claim was last considered by the RO.  Initial RO consideration of those records is also necessary.  
The Veteran receives VA treatment for the disabilities for which increased ratings are sought.  Updated records of such treatment may contain pertinent information (and VA records are constructively of record), and must be secured and considered.  If the records suggest there has been a material change in any of the disabilities for which increased ratings are sought, an examination to assess the severity of the disability would be necessary.  
5. Entitlement to a TDIU rating is remanded.
A TDIU claim is part of an increased rating claim when, as here, such claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Accordingly, such claim must be developed properly, to include sending the Veteran a VCAA letter and, if necessary to decide the matter, arranging for a further VA examination of the Veteran.
The matters are REMANDED for the following:
1.  Ensure compliance with VA’s duties to notify and assist the Veteran regarding a claim for a TDIU rating, to include requesting him to complete a TDIU application.  If he does so, determine whether a VA examination (to assess the nature and extent of functional impairment due to his service-connected disabilities and their impact on physical and sedentary types of employment, irrespective of age) is necessary; if so, arrange for one.  
2.  Associate with the claims file all updated records (from November 2017 to the present) of VA evaluations and treatment that the Veteran has received for his right knee, CAD, and diabetes mellitus (as well as all other service-connected) disabilities.  
3.  Then arrange for the claims file to be sent to the VA clinician who conducted the Veteran’s urological examination in February 2017 (if unavailable, to another appropriate clinician) for review and an addendum opinion.  The examiner should opine whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s renal pelvis cancer residual disability has been aggravated (worsened in severity beyond its natural progression) by his service-connected prostate cancer residuals.  The examiner should describe the symptoms (and related impairment) residuals of each cancer and the impact/effect, if any, the prostate cancer residuals have on the renal pelvis cancer residuals.  If aggravation is found, the examiner is asked to identify, if medically possible, the baseline level of severity of the renal-pelvis cancer residuals prior to the superimposed aggravation.  All opinions must be accompanied by complete rationale.   
4.  If indicated by the record, including the VA VR&E records added to the claims file, arrange for the Veteran to be examined by an appropriate clinician to assess the nature and severity of his service-connected right knee, CAD, and diabetes mellitus disabilities.  All indicated testing should be completed; if CAD is evaluated, testing should include an assessment of work capacity in METs by exercise testing (a METs estimate may only be substituted if studies cannot be conducted for medical reasons, in which case the examiner must support the estimate with specific examples).  

 
GEORGE R. SENYK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Debbie Breitbeil, Counsel

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