Citation Nr: 0217084 Decision Date: 11/26/02 Archive Date: 12/04/02 DOCKET NO. 02-03 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether reduction of the originally assigned 100 percent rating under the provisions of Diagnostic Code 7528 for service-connected adenocarcinoma of the prostate was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Cramp, Associate Counsel INTRODUCTION This case comes before the Board of Veterans Appeals (the Board) on appeal of an April 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (the RO). Procedural history The veteran had active service from March 1966 to December 1967. Service in Vietnam is indicated by the evidence of record. In an October 1998 rating decision, the RO granted service connection for prostate adenocarcinoma due to exposure to Agent Orange. A 100 percent disability rating was assigned under 38 C.F.R. § 4.115b, Diagnostic Code 7528, which provides for a 100 percent rating for malignant neoplasms of the genitourinary system for at least six months, to be followed by a mandatory VA examination. Based on a June 2000 VA examination report, in November 2000 the RO proposed to reduce the 100 percent rating to noncompensable and commence a separate rating for residuals. In April 2001, the RO informed the veteran that the rating under Diagnostic Code 7528 would be reduced to 40 percent disabling, effective from Jul1, 2002. The RO subsequently assigned a noncompensable disability rating under Diagnostic Code 7528 and awarded a separate 40 percent rating for voiding dysfunction secondary to carcinoma of the prostate under Diagnostic Code 7527, effective from July 1, 2001. The veteran disagreed with the April 2001 rating decision and initiated this appeal. The appeal was perfected with the timely submission of the veteran's substantive appeal (VA Form 9) in April 2002. Clarification of issue on appeal For reasons expressed immediately below, the Board believes that the issue on appeal encompasses only the matter stated on the first page of this decision, namely whether the RO properly terminated the 100 percent rating assigned for service-connected adenocarcinoma of the prostate under the provisions of Diagnostic Code 7528. Although the veteran phrased his claim as one for an increase to 100 percent in his January 2002 statement, the Board wishes to make it clear that this appeal does not involve an increased rating claim. A claim arising from an action of the RO reducing the rating of a service-connected disability for compensation purposes is a claim for restoration of the prior rating, not a claim for an increased rating. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The rating schedule provides that upon the termination of the initially assigned 100 percent rating under Diagnostic code 7528, a veteran is to be rated on the basis of residual impairment, under the appropriate diagnostic codes. In this case the RO followed the regulations and rated the veteran on the basis of a voiding dysfunction, assigned a 40 percent rating, and impotence, assigned a noncompensable rating. The veteran has never disagreed with the 40 percent level assigned his voiding dysfunction or the noncompensable rating assigned for impotence. Rather, he has specifically framed his appeal as a disagreement with the propriety of the reduction of his rating under Diagnostic Code 7528 from 100 percent to noncompensably. Therefore, the Board believes that evaluation of the veteran's voiding dysfunction, currently rated as 40 percent disabling, and/or impotence, rated as noncompensably disabling, is not on appeal. The Board observes that in addition to the ratings for residuals of prostate adenocarcinoma, service connection is also in effect for an inguinal hernia and depressive disorder. In addition, special monthly compensation has been granted for loss of use of a creative organ. The veteran has not disagreed with those ratings, and accordingly they will not be addressed in this decision. FINDINGS OF FACT 1. In an October 1998 VA rating decision, service connection was granted for adenocarcinoma of the prostate. An initial 100 percent rating was assigned under Diagnostic Code 7528, effective from April 30, 1998. 2. The veteran's adenocarcinoma was rated at the 100 percent level for over six months until the RO, under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528 and 38 C.F.R. § 3.105(e), reduced the rating to noncompensably disabling and commenced rating residuals under Diagnostic Code 7527 for voiding dysfunction, effective July 1, 2001. CONCLUSION OF LAW The reduction of the 100 percent rating under Diagnostic Code 7528 for prostate adenocarcinoma to noncompensable, and commencement of a separate 40 percent rating for residuals thereof under Diagnostic Code 7527 was proper. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.105(e), 3.344(c), 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION As indicated in the Introduction, the veteran is challenging the propriety of the reduction of his 100 percent disability rating to noncompensably disabling under the provisions of Diagnostic Code 7528. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The VCAA The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) (West Supp. 2001) (West Supp. 2002)]. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)]. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. Except for provisions pertaining to claims to reopen based on the submission of new and material evidence, which are not applicable in the instant case, the implementing regulations are also effective November 9, 2000. In this case, the veteran's claim is not final and remains pending. The provisions of the VCAA and the implementing regulations are, accordingly, applicable. See Holliday v. Principi, 14 Vet. App. 282-83 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of this issue has proceeded in accordance with the provisions of the law and regulations. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See38 U.S.C.A. § 5103; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. In June 2001, the RO sent the veteran a letter which explained the regulations pertinent to the veteran's claim. The veteran was notified of the evidence needed to substantiate his claim, specifically that the RO needed private records identified by the veteran. The RO informed the veteran that it would obtain these records, but that the veteran was responsible to provide adequate identification information and release forms. The veteran was also notified of the relevant law and regulations, and of the types of evidence that could be submitted by him in support of his claim, by the April 2001 rating decision, and by the January 2002 statement of the case (SOC). Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the veteran identified records from the University of Iowa, including treatment by Dr. G.W., and Dr. J.O., and the RO requested those records in September 2001. The RO obtained these records in October 2001. There is no indication that there exists any evidence which has a bearing on this case which has not been obtained. The veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. The veteran was informed of his right to a hearing and was presented several options for presenting personal testimony; but he indicated in his April 2002 VA Form 9 that he did not want a BVA hearing, and he never requested a hearing before the RO. The veteran submitted evidence to the RO in September 1998 and in May 2002. The veteran has submitted statements and his representative has submitted written argument in his behalf. The veteran specifically contended in his December 2000 notice of disagreement that his June 2000 VA examination was inadequate. He stated that he was not physically examined at all, but was interviewed for about 10 minutes. However, the Board finds that the examination report reflects a review of the claims file, including a July 1999 VA examination report and recent treatment records, as well as a familiarity with and discussion of the veteran's clinical history and present condition. Further, the examiner made findings that were pertinent to the criteria under the diagnostic code used to evaluate the veteran. The Board can find nothing to indicate that the examination was cursory or that the examiner did not give adequate attention to the veteran's symptoms. As explained below, symptomatology necessary for the continued assignment of a 100 percent rating under Diagnostic Code 7528 are not shown by any of the medical evidence of record, including that submitted by the veteran. The mere fact that the June 2000 VA examiner's findings do not support the veteran's claim is not a reason to find the examination inadequate. Moreover, as a person without medical training, the veteran is not competent to comment on matters requiring medical expertise, such as the adequacy of a medical examination. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Accordingly, the Board rejects the veteran's contention and the implied request that another examination be scheduled. See also Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's . . . . "duty to assist" is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the new law. Under these circumstances, the Board can identify no further development that would avail the veteran or aid the Board's inquiry. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, the Board will proceed to a decision on the merits. Pertinent law and regulations Rating prostate adenocarcinoma Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2002). Separate diagnostic codes identify the various disabilities. According to the Rating Schedule, malignant neoplasms of the genitourinary system are rated as 100 percent disabling under 38 C.F.R. § 4.115b, 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. Any change in rating based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) [revision of decisions; reduction in evaluation - compensation]. If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals as voiding or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115(b), Diagnostic Code 7528 (2002). Voiding dysfunction is to be rated based upon the particular condition involved such as urine leakage, frequency, or obstructed voiding, continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence. When such residuals require the use of an appliance or the wearing of absorbent materials, the disability is rated based upon the frequency of need to change such appliances or pads. When such changing is required less than 2 times a day, a 20 percent rating is warranted; when such changing is required 2 to 4 times a day, a 40 percent disability rating is in order; when such changing is required more than 4 times per day, a 60 percent rating is warranted. 38 C.F.R. § 4.115a (2002). When the predominant voiding dysfunction constitutes urinary frequency, a 40 percent disability rating is warranted when the veteran's daytime voiding interval is less than one hour, or he must awake to void five or more times per night. 38 C.F.R. § 4.115a (2002). As noted above, Diagnostic Code 7528 explicitly states that any change in rating based upon the mandatory VA examination after 6 months of a 100 percent rating shall be subject to the reduction provisions of 38 C.F.R. § 3.105(e). Thus, in cases such as this where a rating is being reduced, VA must satisfy the procedural due process requirements contained in 38 C.F.R. § 3.105. That section provides that where the reduction in rating of a service-connected disability is considered warranted and the lower rating 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 be continued at their present level. If additional evidence is not received within that period, a 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. 38 C.F.R. § 3.105(e) (2002). Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West Supp. 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R. §§ 3.102, 4.3 (2002). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) (previously the Court of Veterans' Appeals) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. In making its determination, the Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein (holding that the Board has the duty to assess the credibility and weight to be given to the evidence.) The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Analysis For reasons expressed below, the Board has concluded that the reduction of the 100 percent rating for adenocarcinoma of the prostate under Diagnostic Code 7528 and commencement of a separate 40 percent rating for residuals, specifically voiding dysfunction, was done in a procedurally correct manner, and that the evidence does not demonstrate that a continuation of the initially assigned 100 percent rating is appropriate. In fact, the veteran and his representative do not appear to contend that conditions such as local recurrence or metastasis or current treatment or radiation, chemotherapy or other treatment currently exist. With respect to procedural requirements, the RO appears to have complied with the due process requirements spelled out in 38 C.F.R. § 3.105(e), which as discussed above must be followed in connection with a reduction in rating under Diagnostic Code 7528. In particular, the veteran was duly notified by letter in February 2001 of the proposal to reduce the assigned 100 percent disability rating and was allowed to present evidence. No additional evidence was received. The 100 percent rating in question had been in effect for less than five years and the total schedular rating had not become stabilized; therefore, 38 C.F.R. § 3.344(a) and (b) are not for application, and a single reexamination disclosing improvement in the disability is sufficient to warrant reduction in a rating. See 38 C.F.R. § 3.344(c) (2002). Indeed, such a VA examination is made mandatory for ratings under Diagnostic Code 7528 following at least six months of award of a 100 percent rating. See 38 C.F.R. § 4.115b (2002). A VA genitourinary examination was conducted in June 2000, as required by the regulation, and formed the basis for the subsequent reduction of the assigned disability rating. Follow-up reports by Dr. J.O. showed the veteran's condition as doing well, without recurrence. A statement dated April 2002 submitted by Dr. N.P. described significant problems with residuals of the prostate cancer, including urinary incontinence and urethral discomfort. However, this report confirmed that there has been no recurrence. As stated above, the criteria for maintenance of a 100 percent rating under Diagnostic Code 7528 are reoccurrence or metastasis of the malignant neoplasm. The medical evidence does not show that this has occurred. The veteran contends that he is not cured of his condition, and he submitted a statement from Dr. G.W. to the effect that the veteran has not been cured and is still at increased risk for disease progression. The Board acknowledges that the veteran has not been cured; however, the regulations refer to recurrence or metastasis of the cancer, not a cure. Dr. G.W.'s statement merely indicates that the veteran is at increased risk for recurrence; it does not indicate or imply that recurrence has actually occurred. The Board has reviewed all of the evidence of record, and finds that the evidence demonstrates that there has been no local reoccurrence or malignancies of the prostate adenocarcinoma and no metastasis. In short, the Board concludes that the RO has followed the procedure set out in the rating schedule, to include 38 C.F.R. § 3.105(e), in connection with the reduction in the previously assigned 100 percent rating for the veteran's service-connected adenocarcinoma of the prostate. For these reasons, the Board finds that the reduction in the rating assigned service-connected residuals of prostate adenocarcinoma due to exposure to Agent Orange from 100 percent to noncompensable was proper. The benefit sought on appeal, restoration of the initially assigned 100 percent disability rating, is denied. ORDER The reduction in the rating assigned the veteran's service- connected residuals of prostate adenocarcinoma due to exposure to Agent Orange from 100 percent to noncompensably disabling was done pursuant to the VA regulations. Restoration of the 100 percent rating under 38 C.F.R. § 4.115a, Diagnostic Code 7528 is denied. Barry F. Bohan Member, 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.