Citation Nr: 18124076
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 10-33 170
DATE:	August 7, 2018
REMANDED
Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a prostatectomy due to prostate cancer, is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), as secondary to residuals of a prostatectomy due to prostate cancer, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from January 1975 to January 1979.
These matters originally came before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision. 
The case was previously remanded by the Board for necessary development in April 2013, March 2016, and April 2017. 
The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in February 2013.  A transcript of that hearing is of record.
1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a prostatectomy due to prostate cancer, is remanded.
Unfortunately, there has not been substantial compliance with the Board’s previous remand directives.  
In the April 2017 remand, the Board explained that a physician who provided a July 2016 medical opinion found that the operating room (OR) consent form was not available. The only available consent form of record, per the physician, was a general consent form.  Accordingly, the Board directed the RO to obtain the signed OR consent form for the February 2007 prostatectomy (and all subsequent surgeries conducted at the VA Medical Centers (VAMCs) in Durham and Fayetteville in 2007), and associate them with the claims file.
Upon remand, the RO sent a request to both Durham and Fayetteville for consent forms, but only since March 2007.  No request was made for the February 2007 OR consent form for the prostatectomy.  Thus, there was not substantial compliance with this remand directive.  
Furthermore, the Durham VAMC responded in November 2007.  It stated that “electronic records can be access through CAPRI and VISTA imaging viewer for the requested dates 3/2/2007 & 6/6/2007.”  The RO immediately sent the Veteran a letter explaining that “[a] negative response for records from VAMC Durham was received [in] November [] 2017.”  
The Board notes that Durham’s November 2007 response was not a negative reply.  Rather, it was only advising the RO to obtain the records through the electronic health record.  The RO did not indicate that it checked the electronic health record to confirm that the consent forms were not available.  Thus, it remains unclear whether there the remaining consent forms are available.  
Another remand is therefore required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as secondary to residuals of a prostatectomy due to prostate cancer, is remanded.
Because a decision on the § 1151 claim will directly impact adjudication of the claim for service connection for a psychiatric disability, to include PTSD, both issues are inextricably intertwined.  A remand of the claim for service connection for a psychiatric disability, to include PTSD, is therefore required.
The matters are REMANDED for the following action:
1. Obtain the signed operating room (OR) consent form for the February 2007 prostatectomy and all subsequent surgeries conducted at the VA Medical Centers (VAMCs) in Durham and Fayetteville in 2007, and associate them with the claims file.  It must be noted that the RO’s request to both Durham and Fayetteville for consent forms, was only for OR consent forms since March 2007.  No request was made for the February 2007 OR consent form for the prostatectomy.  
(a.) All available signed consent forms currently archived in the electronic health record must be associated with the claims file.  
(b.) If no further consent forms are available after reasonable efforts have been made, this fact must be noted in the claims file, and the Veteran must be notified and given the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 
 
(c.) All attempts to obtain the records must be documented in the claims file.
 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Bosely, Counsel

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