Citation Nr: 0809365 Decision Date: 03/20/08 Archive Date: 04/03/08 DOCKET NO. 05-40 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether the veteran's rating for his service-connected prostate cancer due to herbicides, status-post radical retro pubic prostatectomy with minimal incontinence residuals, was properly reduced from 100 percent. ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from August 1960 until August 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, that raised the evaluation of the veteran's service-connected residuals prostate cancer due to herbicides, status-post radical retro pubic prostatectomy with minimal incontinence residuals, from 20 percent to 40 percent. The veteran had previously been granted a 100 percent evaluation, effective January 4, 2005, which was reduced to 20 percent, effective April 1, 2005, in a February 2005 rating decision. In his July 2005 Notice of Disagreement, the veteran essentially raised a claim for a higher rating evaluation for his erectile dysfunction. However, this matter is not before the Board because it has not been prepared for appellate review. Accordingly, this matter is REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. In a February 2005 rating decision, the RO granted a 100 percent evaluation for the veteran's service-connected prostate cancer due to herbicides, status-post radical retro pubic prostatectomy with minimal incontinence residuals, effective January 4, 2005. 2. The February 2005 rating decision also reduced the evaluation of the veteran's service-connected prostate cancer due to herbicides, status-post radical retro pubic prostatectomy with minimal incontinence residuals, from 100 percent to 20 percent, effective April 1, 2005. 3. In a June 2005 rating decision, the RO raised the evaluation of the veteran's service-connected prostate cancer due to herbicides, status-post radical retro pubic prostatectomy with minimal incontinence residuals, from 20 percent to 40 percent, effective April 1, 2005. 4. In the February 2005 and June 2005 rating decisions, the RO did not consider the pertinent regulations governing the reduction of the evaluation of a service-connected disability rated under Diagnostic Code 7528. CONCLUSIONS OF LAW 1. The RO's February 2005 reduction of the evaluation for the veteran's service-connected prostate cancer due to herbicides, status-post radical retro pubic prostatectomy with minimal incontinence residuals, from 100 percent to 20 percent, occurred without compliance with the requirements set forth in 38 C.F.R. §§ 3.105, 3.344 and Diagnostic Code 7528 (2007), renders the reduction void ab initio. See Brown v. Brown, 5 Vet. App. 413, 422 (1993). 2. Restoration of the 100 percent rating assigned for the service-connected prostate cancer due to herbicides, status- post radical retro pubic prostatectomy with minimal incontinence residuals, is warranted. 38 U.S.C.A. §§ 1155, 7104 (West 2002); 38 C.F.R. §§ 3.105(e) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Merits of the Claim The veteran had approximately 2 years of service in Vietnam. On September 23, 2004, the veteran underwent radical retropubic prostatectomy. The postoperative diagnosis was prostate carcinoma. In January 2005, the veteran filed a claim of service connection for prostate cancer. In a February 2005 rating decision, the RO granted service connection for prostate cancer due to herbicides, status-post radical retro pubic prostatectomy with minimal incontinence residuals, and was assigned an initial 100 percent rating, under Diagnostic Code 7528, effective from January 4, 2005. Effective from April 1, 2005, the RO assigned a 20 percent rating. In a June 2005 rating decision, the RO assigned a higher40 percent rating, effective April 1, 2005. The veteran appealed the assigned lower ratings and he was issued a Statement of the Case in October 2005. He submitted a substantive appeal in December 2005. 38 C.F.R. § 4.115b, Diagnostic Code 7528 provides that malignant neoplasms of the genitourinary system is rated 100 percent. The note to this provision states that 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. 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) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 3.105(e) provides that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should e continued at their present level. If additional evidence is not received within that time period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. The RO, in reducing the veteran's rating from 100 percent to 40 percent for the service-connected prostate cancer did not apply the note provision of 38 C.F.R. § 4.115b, Diagnostic Code 7528, to include application of 38 C.F.R. § 3.105(e). A mandatory VA examination was not conducted at the end of the 6 months period following his prostatectomy and before a reduction was implemented. Additionally, the procedures of 38 C.F.R. § 3.105(e), as note above, were not followed. VA cannot reduce a rating without observance of applicable law and regulations. Therefore, the rating decisions which reduced his rating from 100 percent for the service-connected prostate cancer is considered void ab initio. See Brown v. Brown, 5 Vet. App. 413, 422 (1993). As the veteran's rating evaluation was improperly reduced, his rating must be returned to it original 100 percent evaluation. ORDER Effective April 1, 2005, the veteran's 100 percent rating for prostate cancer due to herbicides, status-post radical retro pubic prostatectomy with minimal incontinence residuals, is restored. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs