Citation Nr: 0941696 Decision Date: 11/03/09 Archive Date: 11/09/09 DOCKET NO. 05-31 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Propriety of reduction of disability rating for service- connected prostate cancer from 100 percent disabling to 10 percent disabling effective January 1, 2005. 2. Entitlement to a rating in excess of 10 percent for disabling residuals of prostate cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which decreased the evaluation of the Veteran's service-connected prostate cancer from 100 percent disabling to 10 percent. FINDINGS OF FACT 1. Service connection for prostate cancer was granted at a disability rating of 100 percent, effective from December 17, 2001, by an April 2002 rating decision; this decision also notified the Veteran that the 100 percent rating was not considered permanent and was subject to a future review examination. 2. Following a July 2004 VA examination, which demonstrated no local reoccurrence of cancer or metastasis, a July 2004 decision proposed to reduce the rating for residuals of prostate cancer from 100 percent to 10 percent. 3. A reduction of the rating for prostate cancer from 100 percent to 10 percent was formally implemented, effective from January 1, 2005, by an October 2004 rating decision. 4. The Veteran's prostate cancer residuals are manifested by daytime voiding interval of not less than one to two hours, and awakening to void not more than three to four times per night; the Veteran does not require the wearing of absorbent materials which must be changed two to four times per day, nor does he have renal dysfunction. CONCLUSIONS OF LAW 1. The reduction of a 100 percent (total) rating was appropriate and properly effectuated, and the criteria for restoration for a 100 percent rating for residuals of prostate cancer are not met. 38 C.F.R. §§ 3.105(e), 4.115b, DC 7528 (2009). 2. The criteria for a 20 percent rating, but no higher, for residuals of prostate cancer have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.115, DC 7528 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and that the claimant is expected to provide; in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the procedures applicable to reduction from a total (100 percent) rating to a lesser rating under 38 C.F.R. § 4.115b, are specified in that rating code, and required the schedular reduction to be conducted in accordance with 38 C.F.R. § 3.105. Section 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating 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 expires. 38 C.F.R. § 3.105(e). When these procedures are applicable, VA must comply with those provisions rather than the notice and duty provisions in the VCAA. See, e.g., Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)) (standards for review of evidence). Therefore, no further discussion of the VCAA as to this issue is required. As to the claim for an evaluation in excess of 10 percent for residuals of prostate cancer, VA's duty to notify the Veteran was met through a letter issued by RO in February 2005 and April 2007. The February 2005 and April 2007 letters advised the Veteran of the evidence that is necessary for an increased rating. However, the Board acknowledges that the letters discussed above were not fully compliant with the requirements set forth in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, the notice in this case is deemed deficient. The notice error in the instant case involves a failure to apprise the Veteran of what additional evidence was needed to substantiate the claim. Therefore, such error is presumed to be prejudicial. Nonetheless, such presumption has been overcome here. Indeed, in this case the October 2006 statement of the case set forth the diagnostic criteria for the disability at issue and also included the provisions of 38 C.F.R. §§ 3.321 and 4.1, which reference impairment in earning capacity as a rating consideration. Furthermore, a Dingess notice of the same date apprised the Veteran of the need to show the nature and symptoms of his condition and the impact of his disability on his employment. Moreover, the Veteran demonstrated that he understood the types of evidence needed to substantiate the claim when he submitted his April 2004, December 2004, and September 2005 statements which explained the severity of the current residuals of the service-connected prostate cancer. Though the letters were issued after the October 2004 rating decision, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case issued in October 2006 after the February 2005 notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Disability Evaluations and Reductions Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA regulations provide that where reduction in evaluation of a service-connected disability 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 is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Furthermore, the regulations provide that the Veteran is to be notified of the contemplated action (reduction or discontinuance) and given detailed reasons therefore, and is to be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If additional evidence is not received within the 60 day period and no hearing is requested, 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 Veteran expires. 38 C.F.R. §§ 3.105(e), (h). Active malignant neoplasms of the genitourinary system are rated as 100 percent disabling. 38 C.F.R. § 4.115b, DC 7528. Thereafter 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, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. 38 C.F.R. § 4.115a states that voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. A 60 percent rating is assigned for disability requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day; a 40 percent rating is assigned for a disability requiring the wearing of absorbent materials which must be changed two to four times per day; a 20 percent rating is assigned for a disability requiring the wearing of absorbent materials which must be changed less than two times per day. According to the criteria for urinary frequency listed in 38 C.F.R. § 4.115a, a maximum 40 percent rating is assigned for disability resulting in a daytime voiding interval of less than one hour or awakening to void five or more times per night; a 20 percent rating is assigned for daytime voiding interval between one and two hours, or; awakening to void three to four hours per night. The criteria for renal dysfunction pursuant to 38 C.F.R. § 4.115a are inapplicable, as there is no medical evidence that the Veteran's residuals of prostate cancer have manifested in renal dysfunction. Facts and Procedural History Briefly, the Board notes that the Veteran's evaluation for service-connected prostate cancer was proposed to be decreased on two occasions. The first proposal to reduce the evaluation was received by the Veteran in February 2003. However, upon the submission of additional medical evidence, his evaluation of 100 percent was continued for a period of 12 months. In August 2004 the Veteran received a second proposal to reduce his evolution. The evaluation was permanently reduced to 10 percent in an October 2004 rating decision. The propriety of such reduction will be discussed further below. Private medical records demonstrate that the Veteran was diagnosed with high grade adenocarcinoma of the prostate in December 2001. See Baptist Health Surgical Pathology Report, dated December 2001. A January 2002 private consultation report confirmed stage T1C, Gleason 7, PSA 14.5, prostate cancer with perineural invasion. At that time, the Veteran stated that he did not want to undergo surgery for treatment of his cancer and, thus, his physician suggested an aggressive approach consisting of androgen ablation, radiation, and seed implantation. A February 2002 bone scan and CT of the abdomen confirmed that there were no metastases. An April 2002 private treatment record from the Veteran's oncologist, Dr. Terk, indicated that the Veteran had not yet initiated any treatment for his prostate cancer. Dr. Terk again recommended a multi-modality approach with total androgen ablation followed by external radiation and a seed implant. A Summary of Radiation Therapy reports shows that the Veteran underwent radiation from December 2002 to January 2003, and that he "tolerated his radiation quite well with no significant treatment related sequelae." Simultaneous hormone therapy was also conducted. A private hospitalization report dated September 2002 shows that the Veteran underwent a seed implantation procedure for further treatment of his prostate cancer. The record demonstrates that he tolerated this procedure well. In November 2002, the Veteran presented to his private oncologist for a follow up consultation/examination. Dr. Terk stated that the Veteran was doing well, and that he had denied any bone pain, systemic symptoms, or problems with his bowels. The Veteran reported a good urinary stream, although he noted that it would stop and start at times. He was taking Flomax only occasionally. Dr. Terk explained that such urinary symptoms were common and would improve over the course of the following months. As required by the terms of DC 7528, the Veteran was afforded a VA examination in connection with the first of two reduction proposals in January 2003. The January 2003 VA examination disclosed that the Veteran was diagnosed with adenocarcinoma of the prostate in December 2001; that he underwent radiation therapy in 2002; and that he had an interstitial radioactive seed implant of the prostate in September 2002. Subjectively, the Veteran reported that he had experienced difficulty emptying his bladder and was recently placed on Flomax. He endorsed nocturia (x1) with the use of Flomax; he otherwise denied having any nocturia. He further denied urinary incontinence, dysuria, hematuria, erectile dysfunction, renal colic, and nephropathy. Prostate, rectal and genitalia examinations were normal. The impression was status post radioactive seed implants for adenocarcinoma of the prostate. In February 2003, the Veteran was seen by Dr. Terk (oncologist) for a follow -up evaluation after completion his hormone therapy, a prostate seed implant, and external radiation. The Veteran reported feeling "very well." He denied any bone pain, systemic symptoms, or problems with his bowels. He had erections sufficient for intercourse. His International Prostate Symptom Score (IPSS) was 8, indicative of moderate symptomatology. He reported a good urinary stream while taking one Flomax per day. Overall, the physician explained that the Veteran was doing "quite well." He stated that the Veteran should return for a routine follow-up in six months. In April 2003, the Veteran's urologist, Dr. Swartz, opined that the Veteran's "downgrade" in his disability rating was a mistake because the Veteran was not "free of disease" and still had complications of therapy including impotence , voiding dysfunction, urgency, frequency, and nocturia. He indicated that his incontinence was interfering with the Veteran's work, and that he was sleep deprived as a result of the nocturia. He stated that although his PSA was low, it was a reflection of his hormone levels and in no way reflected the success of the seed implantation. He further stated that he would not be able to judge the success or failure of the treatment for another 12 months. As noted above, based on these findings, the RO continued the Veteran's evaluation of 100 percent. In July 2004, the Veteran underwent a second VA examination in order to assess his current prostate conditions. At the time, the Veteran's only reported treatment was Levitra as needed for impotency (for which he is already service- connected, and in receipt of special monthly compensation under 38 C.F.R. § 3.351(a)). The Veteran stated that he experienced dysuria only when he ate spicy foods or used caffeine; he approximated that he had hematuria two times per month and endorsed occasional hesitancy. He expressly denied urgency, back pain/joint pain, and fatigue. Physical examination of the Veteran revealed no masses or nodules, but a "firm" prostate. The diagnoses were adenocarcinoma of the prostate, previously treated with a seed implantation, and partial erectile dysfunction. In September 2004, Dr. Swartz, submitted a second letter indicating that the Veteran still suffered from significant side effects, including total impotence, voiding dysfunction, urgency, frequency, and nocturia. The Veteran submitted a contemporaneous statement in which he complained of voiding dysfunction and total impotence. In a February 2005 VA clinical record the Veteran reported nocturia one to two times per night, depending on what he had eaten. In an April 2005 statement from the Veteran, he reported that he could no longer eat certain foods which irritated his bladder and that he was constantly running back and forth to the bathroom day and night. In September 2005, in his substantive appeal (VA Form 9), the Veteran reported significant side effects of the seed implantation, including bladder irritation (from certain foods), and impotency. Most notably, he reported daytime voiding intervals of one to two hours, and nocturia three to four times almost every night. In August 2006, Dr. Swartz submitted a third letter on the Veteran's behalf, stating the Veteran's disease was "under control" but that he continued to experience many side effects of therapy, including impotency, voiding dysfunction with urgency, frequency, and nocturia. Dr. Swartz did not report as to the frequency or severity of the Veteran's voiding dysfunction. Based on Dr. Swartz's above assessment, the RO scheduled the Veteran for a VA examination in order to evaluate the severity of his service-connected prostate cancer residuals. The Veteran failed to report to the scheduled January 2006 examination without reason. In March 2006, a VA clinical record reflects that the Veteran complained of "urinary urgency" depending on what he has eaten, along with varying degrees of nocturia. A September 2006 VA clinical record similarly reflects complaints of urgency, nocturia, and impotence. The Veteran reported that he changed his diet in order to avoid foods that caused increased urinary symptoms. Analysis - Reduction With the rating criteria in mind, the relevant procedural history will be summarized. Following receipt of a claim in December 2001, service connection was granted for prostate cancer by a rating decision dated April 2002. A 100 percent evaluation was assigned, effective December 17, 2001. Following the January 2003 VA examination, which demonstrated no incontinence, dysuria, or other disabling dysfunctions of the genitourinary system, a February 2003 rating decision proposed to reduce the rating for residuals of prostate cancer from 100 percent to 0 percent. The Veteran was informed of this proposal by letter dated in February 2003. Following receipt of additional submissions from the Veteran's urologist in April 2003, the 100 percent evaluation was continued by way of a September 2003 rating decision. At that time, the Veteran was informed that the 100 percent evaluation was not considered permanent and that another VA examination would be required in 12 months to reassess the residuals of his prostate cancer. Thus, following a July 2004 VA examination, which demonstrated no local reoccurrence of cancer or metastasis, and no current treatment for cancer, a July 2004 rating decision once again proposed to reduce the rating for residuals of prostate cancer from 100 percent to 10 percent. The Veteran was informed of this proposal by letter dated in August 2004. A reduction in rating to 10 percent was formally accomplished in an October 2004 rating action, effective from January 1, 2005. Based on the foregoing, the Board finds that the reduction in the 100 percent rating for residuals of prostate cancer was proper. Indeed, as required by Diagnostic Code 7528 and 38 C.F.R. § 3.105(e), the proposed reduction followed a VA examination (July 2004) and notice by proposed rating decision. The reduction was also well-supported by the clinical evidence described above, in particular the July 2004 VA examination, which did not reflect reoccurrence or metastasis of the cancer. In fact, the July 2004 examination revealed that the Veteran was not receiving any current therapeutic treatment for his prostate cancer; moreover, contemporaneous private treatment records demonstrated that the Veteran had completed all hormone therapy, prostate seed implantations, and external radiation by late January/February 2003. Indeed, a February 2003 "Final Report" from the Veteran's oncologist indicated that the Veteran was doing well, and that he only needed to be seen for a routine follow-up in six months. Similarly, the January 2003 radiation report from Dr. Terk indicated that the Veteran had tolerated radiation therapy quite well with no significant treatment related sequelae. Based on the foregoing evidence, which does not reflect reoccurrence or metastasis of cancer, the Board finds that the reduction of a total (100 percent) evaluation for residuals of treatment of service-connected prostate cancer was proper. See 38 C.F.R. § 7528. Analysis - Increased Rating Turning now to whether the 10 percent rating best reflects the Veteran's residuals of prostate cancer, the Board initially notes that the Veteran's claimed residual disabilities are urinary frequency, voiding dysfunction, erectile dysfunction (for which service connection is already in effect), and incontinence. Again, the October 2004 rating decision, which is the subject of the current appeal, reduced the Veteran's 100 percent evaluation for residuals of prostate cancer to 10 percent, effective January 1, 2005. The Board has considered the medical evidence as well as the Veteran's own statements regarding his disability, such as his complaints of urgency, problematic voiding, frequency of urinary, and nocturia. Overall, the Board finds that the evidence of record shows that the Veteran continues to experience urinary frequency to such a degree that a higher, 20 percent evaluation is warranted. See 38 C.F.R. § 4.115a. Indeed, in September 2004, Dr. Swartz, a urologist, reported that the Veteran still experienced "significant" side effects of his radiation treatment, including urgency, frequency, nocturia, and incontinence. In April 2005, the Veteran reported that his urinary frequency had worsened the point where he was constantly running back and forth to the bathroom, day and night. See Statement In Support of Claim, April 2005. Similarly, in the Veteran's substantive appeal, dated September 9, 2005, he specifically complained of interval voiding between one and two hours during the day, and nocturia up to three to four times per night. Here, the Board notes that such symptomatology satisfies the 20 percent rating criteria set forth 38 C.F.R. § 4.115a for urinary frequency. Significantly, the foregoing subjective complaints are further supported by contemporaneous private and VA medical records. In this regard, March 2006 and September 2006 VA clinical records show continued complaints of nocturia and urgency, varying in degrees of frequency/severity. Additionally, the Veteran's urologist, Dr. Swartz, submitted a letter in August 2006, confirming continued frequency, urgency, and nocturia. Although these records do not quantify the frequency of the nocturia and interval voiding, the Board finds that the Veteran is both competent and credible to report such symptoms. Thus, when considering the medical and lay evidence, in toto, the Board is of the opinion that the point of equipoise has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and an evaluation of 20 percent is granted for the period on appeal. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). However, the preponderance of the evidence weighs against a disability evaluation greater than 20 percent. Neither the subjective, nor objective medical evidence of record demonstrates that the Veteran has a disability which requires the wearing of absorbent materials which must be changed 2 to 4 times per day; a disability resulting in a daytime voiding intervals of less than one hour, or awakening to void five or more times per night; or renal dysfunction. As noted, the Veteran himself reported urinary frequency of only three to four times "almost" every night, with voiding intervals between one and two hours during the day. Similarly, in February 2005, he reported nocturia occurring only one to two times per night, largely depending on what he had eaten prior to bed. Such symptomatology more nearly approximates a 20 percent rating for urinary frequency. Therefore, the Board finds that the evidence is at an approximate balance for a 20 percent rating, but no higher, for residuals of prostate cancer. In so finding, it is important for the Veteran to understand that his complaints, overall, are the basis for the 20 percent evaluation. Some of the Veteran's own statements in this case provide the basis to find that he does not meet the requirements for a higher evaluation. ORDER The reduction of a total (100 percent) evaluation for residuals of treatment of service-connected prostate cancer was properly effectuated and restoration of the 100 percent evaluation is denied. A 20 percent evaluation, but no higher, for service connected residuals of prostate cancer, is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs