Citation Nr: 18154207
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-22 889
DATE:	November 29, 2018
REMANDED
Entitlement to an evaluation in excess of 40 percent for prostate cancer, to include whether the reduction in disability rating from 100 percent to 40 percent, effective May 1, 2016, was proper is remanded.
Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) from May 1, 2016 is remanded.
REASONS FOR REMAND
The Veteran served on active duty from December 1965 to December 1967.  This matter is on appeal from a January 2016 rating decision.
The Board notes that in his February 2016 notice of disagreement (NOD), the Veteran did not appeal the issue of entitlement to SMC from May 1, 2016.  However, in the April 2016 Statement of the Case (SOC), the RO continued to adjudicate the Veteran’s SMC claim.  Accordingly, the Board is obligated to address the issue.  38 C.F.R. § 20.202; see also Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has implicitly or explicitly treated it as on appeal and the appellant might have reason to believe it was on appeal).

Unfortunately, these claims must be remanded for further evidentiary development.
Prostate Cancer 
In numerous VA treatment records, including from September 2014 and December 2017, it was indicated that the Veteran was receving treatment from Vanderbilt Urology.  There are no records in the file from this facility.  A remand is required to allow VA to obtain authorization and request these records.
Additionally, updated VA treatment records should be obtained and associated with the claims file. 
The Board observes that the Veteran was last afforded a VA examination for his prostate cancer in March 2016.  The examiner found that the Veteran had a voiding dysfunction, which caused urine leakage.  The examiner also checked “yes” when asked whether the voiding dysfunction required the use of an appliance, but when asked to describe the appliance, the examiner indicated “Residuals of Prostate Cancer.”  The Board notes that the VA treatment records and an August 2015 VA examination, conducted less than a year before the March 2016 VA examination, do not indicate that the Veteran requires the use of an appliance.  Given the inadequate response in the March 2016 VA examination, and the conflicting evidence of record, the Board finds that a new VA examination is warranted to determine the current nature and severity of the Veteran’s service-connected prostate cancer.
SMC
The Board finds that the issue of entitlement to SMC pursuant to 38 U.S.C. § 1114(s) from May 1, 2016 is inextricably intertwined with the prostate cancer claim remanded herein.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other).  Therefore, a decision on this issue must be deferred until after the outcome of this claim.

The matters are REMANDED for the following actions:
1. Ask the Veteran to complete a VA Form 21-4142 for the complete treatment records from Vanderbilt Urology.  
Make two requests for the authorized records from this facility, unless it is clear after the first request that a second request would be futile.
2. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present.
3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected prostate cancer.  
The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  
The examiner should detail the nature and severity of any renal dysfunction and urine dysfunction, to include urine leakage, urinary frequency, and obstructed voiding found to be present.  The examiner should indicate whether any urinary leakage due to the prostate cancer residuals requires the wearing of absorbent materials and how often they must be changed per day, and whether any voiding dysfunction requires the use of an appliance.    
To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s prostate cancer and residuals alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living.  
If it is not possible to provide any requested opinions without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
 
L. BARSTOW
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Bonnie Yoon, Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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