Citation Nr: 0320589 Decision Date: 08/18/03 Archive Date: 08/25/03 DOCKET NO. 02-00 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to restoration of a 100 percent rating for prostate adenocarcinoma. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Stanley Grabia, Counsel INTRODUCTION The veteran retired in July 1973 after more than 20 years of active service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which reduced the 100 percent schedular rating for the veteran's service- connected residuals of prostate adenocarcinoma to 60 percent, effective from April 1, 2001. The veteran filed his claim in September 1996 and the RO granted service connection for adenocarcinoma of the prostate effective November 7, 1996. Pursuant to Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) ("Nehmer II"), the appropriate effective date for grants of entitlement to service connection for prostate cancer due to Agent Orange exposure should coincide with the date of claim or the date that disability occurred, whichever is later despite the fact that the regulations providing for service-connection on a presumptive basis did not become effective until November 7, 1996. Pursuant to this court case, the RO should consider whether the effective date for service connection in this case should be adjusted from November 7, 1996, to the date of claim. Additionally, VA examination in April 2002 revealed that the veteran is totally impotent. The veteran's entitlement to special monthly compensation for loss of use of a creative organ based on impotence does not appear to have been considered by the RO. This matter is also referred to the RO for its consideration. FINDINGS OF FACT 1. The veteran underwent a transurethral resection in 1992, and again in 1996 at which time prostate adenocarcinoma was diagnosed. 2. The veteran has cancer established by biopsy which has been under observation since it was initially diagnosed. CONCLUSION OF LAW The reduction in the rating assigned service-connected residuals of prostate adenocarcinoma from 100 percent to 60 percent was improper, and restoration to a rating of 100 percent is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5112(b)(6) (West 2002); 38 C.F.R. §§ 3.102, 3.105(e), 3.159, 3.321(b)(1), 3.344(c), 4.1-4.14, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000, 114 Stat. 2096 (2000) (VCAA), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), went into effect. VA has promulgated revised regulations to implement these changes in the law. 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2002). In view of the allowance of the veteran's appeal, further consideration of the VCAA is not warranted. Criteria. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2002). According to the Rating Schedule, malignant neoplasms of the genitourinary system are rated as 100 percent disabling under Diagnostic Code 7528. Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Background. In September 1992 the veteran underwent a transurethral resection. At that time the prostate was found to be benign. In September 1996 the veteran underwent a second transurethral resection. At that time several tiny foci of adenocarcinoma, Gleason grade 1-2 were found in a background of benign adenomyomatous hyperplasia, with chronic prostatitis. In September 1996 the veteran filed a claim for several conditions secondary to exposure to Agent Orange, including adenocarcinoma of the prostate. By rating action in December 1996 service connection was granted for adenocarcinoma, Gleason 1-2 of prostate, SP transurethral resection and a 100 percent evaluation was assigned effective November 7, 1996. In making that determination the RO noted that the veteran's adenocarcinoma of the prostate was granted on the basis of presumption of exposure to herbicides in Vietnam. In a VA examination in July 1997, the examiner noted that the VAMC was still awaiting the pathology report for review prior to determining the type of treatment to pursue. Since his procedure, he was suffering from urinary incontinence and was using an external condom catheter. The examiner noted a normal penis with condom catheter, normal scrotum, testes, and sphincter control. An April 1997 bone scan, revealed no evidence of metastasis. The diagnoses were adenocarcinoma of the prostate, urinary incontinence, and no evidence of bone metastasis. By rating action in August 1997 the 100 percent evaluation was continued. In making that determination the RO noted that the pathology report needed to decide the type of treatment for the veteran's adenocarcinoma of the prostate was still pending. In a June 2000 VA examination, the examiner noted the veteran's history of adenocarcinoma of the prostate. A needle biopsy in 1996 had been positive for carcinoma of the prostate. A PSA of 14.8 was noted in September 1997. His last PSA in April 2000 was 4.25. The examiner noted that the veteran was suffering from urinary incontinence and was using an external condom catheter. The examiner noted a normal penis with condom catheter, normal scrotum, testes, and sphincter control. The prostate was small and soft. The diagnoses were recurrent urinary tract infections, chronic prostatitis, and adenocarcinoma of the prostate at present under observation. No evidence of metastasis or active disease was noted. The veteran was pending for another prostate biopsy. In July 2000, the RO issued a proposed rating decision informing the veteran of the pending reduction from 100 percent of his disability rating for residuals of prostate adenocarcinoma. The proposal explained the material facts and reasons for the proposed reduction. The RO noted no evidence of metastasis or active disease, and he was under observation for adenocarcinoma of the prostate, and was pending another prostate biopsy. In a September 2000 letter from Jose J. Castro, M.D, he notes that the veteran was diagnosed with prostate cancer in October 1996. He had been followed up with regular PSA tests, and was considered stable at the present time. In a January 2001 rating decision, the 100 percent schedular rating was reduced to 60 percent effective from April 1, 2001. In April 2002, the veteran underwent a VA examination, and review of his medical records. The examiner noted the history of adenocarcinoma of the prostate. The veteran was totally incontinent and used a condom Foley catheter. He was initially treated with Finasteride therapy and observation. His current PSA was 5.94 and he was being followed with observation. No radiotherapy or hormonal therapy was given. He was totally impotent, but used no medications for his impotency or for his prostate cancer. He had no infections, colic, stones nephritis, and has had no hospitalizations. His daily activities were somewhat limited by his incontinence caused by his treatment for cancer. The examiner noted the prostate was normal in size with no evidence of nodules or hard areas. He had normal sensations, reflexes and pulses. The laboratory workup revealed a Gleason 12, less than 5% of the prostate was involved in cancer. His PSA was 5.70. The rest of the workup was normal. The diagnoses were adenocarcinoma of the prostate, Gleason 12 and total incontinence. Analysis. According to VBA Training Letter 00-02 (May 1, 2000), the possible treatments for prostate cancer include radical prostatectomy, cryotherapy, external radiation therapy, brachytherapy, hormone therapy, chemotherapy, and watchful waiting. The Board notes that the veteran did not undergo radical prostatectomy, radiation therapy, or hormone therapy. He was treated with Finasteride and observation or watchful waiting. Watchful waiting is described as following in VBA Training Letter 00-02: Watchful waiting (conservative or expectant management, observation, surveillance) is a type of treatment during which patients do not undergo any immediate specific therapy, but the patient is closely monitored. The rationale is prostate cancers grow slowly and may not progress during the patient's lifetime, especially if there is a short life expectancy due to age or other illness. The Training Letter provides the following guidance for rating with "watchful waiting": If the veteran does have cancer established by biopsy, rate at 100%, despite the lack of treatment and possible lack of symptoms. There is no indication that the veteran's prostate cancer was cured. In July 1997 it was noted that the veteran's physicians were awaiting a pathology report to determine the type of treatment to pursue. Adenocarcinoma of the prostate with no evidence of bone metastasis was diagnosed at that time. In the June 2000 VA examination, the examiner noted a positive needle biopsy in 1996, and a September 1997 PSA of 14.8. In April 1999 his PSA had gone down to 4.25. Adenocarcinoma of the prostate was under observation with no evidence of bone metastasis or active disease was diagnosed. He was pending a prostate biopsy. In an April 2002 VA examination, the examiner noted a current PSA of 5.94. No hormonal therapy or radiotherapy was given and he was still being followed with observation. A laboratory report noted a Gleason 12, less than 5% of the prostate was involved in cancer. Adenocarcinoma of the prostate was diagnosed. As noted in all three of the aforementioned VA compensation examinations, the veteran was still suffering from adenocarcinoma of the prostate. This evidence is clearly not consistent with an actual change in the disability. Accordingly, the Board finds that entitlement to restoration of a 100 percent evaluation for service-connected adenocarcinoma of the prostate is warranted. ORDER Entitlement to restoration of a 100 percent evaluation for prostate adenocarcinoma is granted. ______________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.