Citation Nr: 0702911 Decision Date: 01/31/07 Archive Date: 02/06/07 DOCKET NO. 05-17 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to restoration of a 100 percent evaluation for prostate cancer. 2. Entitlement to a disability rating in excess of 40 percent for prostate cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran served on active duty from January 1964 to January 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Buffalo, New York Regional Office (RO) of the United States Department of Veterans' Affairs (VA). In that decision, the RO reduced the disability rating for prostate cancer from a 100 percent disability rating to a 40 percent disability rating effective September 1, 2004. The 100 percent rating had been in effect since May 8, 2000. The veteran attended a local hearing in April 2004. The Board notes that in the veteran's substantive appeal in May 2005, he requested a hearing before the Board. The veteran did not appear at his scheduled hearing before the Board in February 2006. As the record does not contain further indication that the veteran or his representative submitted additional requests for a Board hearing, the Board deems the veteran's request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2006). FINDINGS OF FACT 1. In a February 2004 rating decision, the RO notified the veteran of a proposed rating reduction in the evaluation for his service-connected prostate cancer from 100 percent to 40 percent. 2. The June 2004 rating decision reduced the evaluation for his service-connected prostate cancer from 100 percent to 40 percent, effective September 1, 2004. 3. The veteran underwent no surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure for treatment of prostate cancer subsequent to March 2000. 4. The veteran's service-connected prostate cancer is manifested by complaints of urinary frequency, urinary leakage and mild urinary stress incontinence that require the wearing of absorbent materials which must be changed 3-4 times per day. CONCLUSIONS OF LAW 1. The criteria for restoration of a 100 percent disability rating for prostate cancer have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 4.1, 4.2, 4.115, 4.115a, 4.115b, Diagnostic Code 7528 (2006). 2. The criteria for a rating in excess of 40 percent for prostate cancer have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.105, 4.1, 4.2, 4.115, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2006). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Once service connection is established, the claim is substantiated and further VCAA notice with regard to downstream issues, such as the initial evaluation, is unnecessary. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Nevertheless, the veteran has been fully advised of the evidence needed to substantiate entitlement to restoration of a 100 percent evaluation for prostate cancer, of the evidence he needed to provide and the evidence VA would obtain, as well as the need for him to submit any evidence in his possession. Such notice was issued to the veteran in a letter dated February 2004, the January 2001 and June 2004 rating decisions and the May 2005 statement of the case. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson. This notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran has established service connection, thus the first three elements of Dingess notice are unnecessary. He has not received notice regarding an effective date or the evidence needed to establish a rating. However, the claims for restoration of a 100 percent disability rating and entitlement to a disability rating in excess of 40 percent are being denied and no effective date are being set. The Dingess Court held that once service connection is established, the claim is substantiated and further VCAA notice is not required. He is, therefore, not prejudiced by the absence of notice on that element. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). There was a timing deficiency with the notification, because it was provided after the initial evaluation of June 2004. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The timing deficiency was remedied by the readjudication of the claim after the notice was provided. VA has thereby met its obligations to notify the veteran of the medical and other evidence needed to substantiate his claim and of what evidence he is responsible for obtaining. Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to assist Under 38 U.S.C.A. §5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has received and made attempts to obtain all the treatment records and documentation provided by the veteran. Neither the veteran nor his representative have suggested that there are missing VA or private medical records that need to be obtained, and the Board is not aware of any such records. Nor is the Board aware of any additional evidence that could assist the veteran in substantiating his claim. Additionally, the veteran underwent a comprehensive VA examination in December 2003 in order to determine the current nature and severity of his service-connected prostate cancer. A February 2004 addendum followed the December 2003 VA examination report. Therefore, the facts relevant to the veteran's claims have been properly developed and there is no further action to be undertaken to comply with the provisions of the VCAA and the implementing regulations. See Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. §5103A (a) (2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Factual Background As noted above, in June 2000, the RO granted the veteran's service connection claim for prostate cancer, evaluating it as 100 percent disabling effective May 8, 2000. In July 2000, a treatment note from Dr. Donahue, the veteran's treating doctor, stated that the veteran was clinically and biochemically free of disease. In April 2003, the veteran presented to the Albany, New York VA Medical Center (VAMC) for a follow up examination. The physician noted the veteran's past medical history of prostate cancer and his radial prostatectomy. The veteran had no complaints as he stated that he was doing well. The diagnosis was hyperlipidemia and gout. In December 2003, the veteran underwent a VA examination. The examiner noted that while the claims file was unavailable, he was able to review the veteran's electronic file. The veteran reported a history of prostate cancer that was diagnosed three years ago. The veteran had a radical prostatectomy and was doing well to date. He stated that he did not have any urinary infrequency but did continue with urinary urgency as well as urinary leakage daily. He used pads for this reason. While he reported erectile dysfunction, he did not have a history of urinary tract infections, bladder stones or hematuria. The examiner stated that the veteran was doing well despite urinary leakage and urinary urgency. He was to continue yearly follow up examinations with his urologist to test his PSA levels. In a February 2004 addendum, the VA examiner stated that the veteran reported using 3-4 pads during the day. The veteran also stated that he urinated once every two hours during the day and 2-3 times during the night. In a treatment note in April 2004, Dr. Donahue stated that the veteran presented for a follow up of his adenocarcinoma of his prostate. The veteran reported frequency every 3 to 4 hours with a variable, steady, urinary stream. He felt that he had some mild urinary stress incontinence. He usually wore a pad to feel comfortable. On rectal examination, the veteran's prostatic fossa was empty with no palpable evidence of locally recurrent disease. Dr. Donahue concluded that the veteran was now four years removed from his radical prostatectomy and he was clinically and biochemically free of disease. In a September 2004 letter, Dr. Donahue corresponded with the veteran's physician, Dr. Weiss. He reiterated that after evaluating the veteran in April 2004, he concluded that the veteran was clinically and biochemically free of disease. He stated that he planned on seeing the veteran again in one year as recurrence of prostate cancer can happen every 10 to 15 years after treatment. This case essentially involves two questions. First, was the reduction in the 100 percent evaluation proper; and second, if the reduction was proper, was the assignment of a 40 percent disability evaluation proper. Entitlement to restoration of a 100 percent evaluation for prostate cancer. The evaluation of 100 percent was provided under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. The note following this Diagnostic Code indicates that, following the cessation or surgery, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, then the veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. The undisputed evidence shows that the veteran received no surgery, chemotherapy, or other therapeutic procedure for prostate cancer after his March 2000 surgery. The provisions of 38 C.F.R. § 3.105(e) allows for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. First there must be a rating action proposing the reduction, and giving the veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). The veteran was notified of the RO's intent to reduce the 100 percent evaluation for service-connected residuals of prostate cancer by letter dated on February 13, 2004. Thereafter, he was afforded an opportunity to have a pre- determination hearing and given at least 60 days in which to present additional evidence. 38 C.F.R. §§ 3.105(e), (i) (2006). Final action to reduce the 100 percent evaluation to zero percent was taken pursuant to 38 C.F.R. § 3.105(e) in June 2004. The veteran was informed of this decision by letter dated on June 21, 2004. The reduction was made effective beginning September 1, 2004. The Board notes incidentally that regulatory provisions normally applicable to reductions from 100 percent, and for rating reductions in general, are not applicable where, as here, the reduction is mandated by expiration of a time period set in the rating schedule. Rossiello v. Principi, 3 Vet. App. 430 (1992); cf. 38 C.F.R. §§ 3.343, 3.344 (2006). Based on a review of this procedural history, it appears that the RO complied with all of the requirements 38 C.F.R. § 3.105(e). The veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Finally, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e) (2006). The veteran has not contended that these provisions were not complied with, or that he was receiving any treatment for prostate cancer after March 2000. Therefore, all of the evidence is in favor of a finding that the reduction from 100 percent was proper. The Board notes that a record of a VA examination mandated within six months of the June 2000 rating decision granting service connection for prostate cancer. However, the subsequent 2003 VA examination, VAMC records and private medical records demonstrate that the veteran underwent no surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure for treatment of prostate cancer subsequent to March 2000. He is, therefore, not prejudiced by the lack of a VA examination six months after his grant of service connection. See Bernard v. Brown, supra. Having concluded that the RO correctly followed the necessary procedures to reduce the 100 percent rating for the veteran's service-connected prostate cancer, the Board next turns to whether the evaluation of the residuals as 40 percent disabling was proper. Entitlement to a disability rating in excess of 40 percent for prostate cancer. The record shows that there has been no local reoccurrence or metastasis. Therefore, the veteran's cancer is rated under Diagnostic Code 7528. Diagnostic Code 7528 provides that the residuals of the veteran's prostate cancer will be rated under the criteria for renal dysfunction, or voiding dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2006). There have been no reports of renal dysfunction. The normal urinalyses blood counts demonstrate that he does not have albumin, casts, albuminuria, or BUN or creatinine values needed for a compensable evaluation. Elevated blood pressure readings have not been reported. Therefore, the Board finds that he does not meet or approximate the criteria for a compensable evaluation if rated under the renal dysfunction criteria. The ratings for voiding dysfunction and renal dysfunction are found at 38 C.F.R. § 4.115a (2006). Voiding dysfunction is rated based on symptoms of urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. As the veteran's symptomatology is limited to complaints of mild urinary stress incontinence and urinary frequency, those are the rating criteria that will be considered in determining whether the RO properly reduced the veteran's 100 percent evaluation for service-connected residuals of prostate cancer. Voiding Dysfunction (Urine Leakage) under 38 C.F.R. § 4.115a Contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. An evaluation of 60 percent disabling is available when these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. An evaluation of 40 percent disabling is available when there is leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. 38 C.F.R. § 4.115a. Urinary Frequency under 38 C.F.R. § 4.115a For urinary frequency, an evaluation of 10 percent disabling is available for urinary frequency manifested by a daytime voiding interval between two and three hours, or awakening to void two times per night. The next higher evaluation of 20 percent disabling is available for urinary frequency manifested by a daytime voiding interval between one and two hours or awakening to void three to four times per night. The maximum evaluation of 40 percent disabling is available for urinary frequency manifested by a daytime voiding interval of less than one hour or awakening to void five or more times per night. 38 C.F.R. § 4.115. The veteran is currently evaluated at the highest schedular rating available for urinary frequency. Therefore the determination is whether the veteran is entitled to a 60 percent disability evaluation under voiding dysfunction (urine leakage) for his urinary stress incontinence. The record does not demonstrate that the veteran's urine leakage or mild urine stress incontinence require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. In the February 2004 addendum, the VA examiner stated that the veteran reported using only 3-4 pads during the day. Therefore, the veteran is not entitled to a disability rating in excess of 40 percent. Additionally, the Board acknowledges the veteran's continuing complaints of erectile problems. However, the veteran currently receives special monthly compensation for the loss of use of a creative organ. The Board finds that the reduction of the 100 percent evaluation for the veteran's service-connected prostate cancer was proper. See 38 C.F.R. § 3.344(c). The Board also finds that the weight of the evidence is against a finding that the veteran's service connected prostate cancer meets or approximates the criteria for an evaluation in excess of 40 percent. As the preponderance of the evidence is against the claim, that doctrine of reasonable doubt is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to restoration of a 100 percent evaluation for prostate cancer is denied. Entitlement to a disability rating in excess of 40 percent for prostate cancer is denied. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs