Citation Nr: 1305677 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 08-33 856A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to restoration of a 100 percent disability rating for adenocarcinoma of the prostate, which was reduced to 20 percent, effective February 1, 2008, to include entitlement to a disability rating greater than 20 percent from February 1, 2008 to April 24, 2012, and greater than 40 percent since April 24, 2012. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from June 1956 to June 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the RO in San Diego, California, which reduced the Veteran's rating for prostate adenocarcinoma from 100 percent to 20 percent, effective February 1, 2008. The Veteran requested a personal hearing before a Member of the Board at the RO in his November 2008 substantive appeal; however, he withdrew the request in March 2009 correspondence. 38 C.F.R. § 20.704(d) (2012). In December 2011, the Board remanded this appeal for additional evidentiary development. It has since been returned to the Board for further appellate action. Subsequent to the Board's December 2011 remand, the RO granted an increased rating for adenocarcinoma of the prostate of 40 percent, but made the increase effective April 24, 2012, thus establishing a staged rating. While the RO has granted a higher rating, inasmuch as higher ratings are still available before and after the effective date of the 40 percent rating, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the issue as reflected on the title page. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. In September 2006, the RO assigned a 100 percent initial rating for prostate cancer, effective February 21, 2006. 3. In July 2007, the RO proposed to reduce the rating for prostate cancer from 100 percent to 20 percent. 4. By a November 2007 rating decision, the RO reduced the rating for prostate cancer from 100 percent to 20 percent, effective February 1, 2008. 5. At the time of the reduction from 100 percent to 20 percent, there had been a recurrence of the prostate cancer. 6. In light of the restoration of a 100 percent rating for prostate cancer, there remain no allegations of errors of fact or law for appellate consideration regarding the claim for an increased disability rating for prostate cancer in excess of 20 percent. CONCLUSIONS OF LAW 1. Reduction of the rating for prostate cancer from 100 percent to 20 percent was improper, and the criteria for restoration of a 100 percent rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.343, 3.344, 4.1-4.14, 4.115b, Diagnostic Codes 7527, 7528 (2012). 2. The criteria for dismissal of the claim for an increased disability rating for prostate cancer are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Restoration of 100 Percent for Prostate Cancer There is no question that a disability may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The provisions of 38 C.F.R. § 3.105 apply to rating reductions. The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements for rating reductions. The proper procedure was followed for effectuating a reduction in this matter. Moreover, because the 100 percent evaluation was effective February 21, 2006, and reduced to 20 percent effective February 1, 2008, it had not been in effect for five years or more. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are not determinative in this instance. Under 38 C.F.R. § 3.344(c), the pertinent disability rating must have continued for five years or more before the criteria in paragraphs (a) and (b) of that section become applicable. The criteria under which the 100 percent rating for prostate cancer was initially assigned are provided under Diagnostic Code 7528 (malignant neoplasms of the genitourinary system). That code provides a 100 percent rating. A note following that code provides 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 rating 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, the rating should be on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. Thus, the 100 percent continues until such time as there has been a determination that there has been no local reoccurrence or metastasis. Any reduction of the 100 percent rating is contingent on a determination that there has been no local reoccurrence or metastasis. The Veteran submitted a January 2008 letter from his treating physician, Dr. M., which stated that the Veteran had a recurrence of prostate cancer based on PSA testing. VA provided the Veteran an examination in May 2008 which notes that treatment for malignancy was completed in March 2008. The Veteran informed the examiner that his malignancy was not in remission and his last PSA was elevated. The examiner noted the elevated PSA, but made no specific finding as to recurrence of prostate cancer. A VA treatment record from October 2008 contains an entry indicating a rising PSA and that the treating physician thought "his cancer is getting active." The Veteran was started on Zoladex injections which, over the course of 2009 resulted in lowering his PSA scores. The report of VA examination in April 2012 reveals that the Veteran had been started on hormone pills in 2008 due to his elevated PSA. These treatments were stopped in 2009 due to side effects. The Veteran had since been monitored by a private urologist and was currently in a watchful waiting status. The examiner advised the Veteran to submit his private treatment records so that the status of his prostate cancer could be determined. A December 2012 addendum reflects a review of the Veteran's private treatment records by a VA clinician. The reviewing clinician found that the prostate cancer was in remission, but that there had been a recurrence of the malignancy in 2008. The evidence on this point is still slightly indistinct, notwithstanding the Board's efforts. Giving the Veteran the benefit of the doubt, the evidence at the time of the rating reduction, which was effective February 1, 2008, demonstrates that the cancer was recurrent at that time, as demonstrated by the January 2008 letter from the Veteran's private physician. This finding was subsequently confirmed by the April 2012 VA examiner and December 2012 VA reviewing clinician. A finding that there has been no local recurrence or metastasis is required under the rating schedule for discontinuance of the 100 percent rating. Therefore, the Board finds that the criteria for discontinuance of the 100 percent rating were not met at the time of the rating reduction. Accordingly, the reduction is void and restoration of the 100 percent rating for prostate cancer is warranted. The Board notes that its decision here does not preclude prospective action on the part of the RO to reduce the 100 percent rating based on the facts regarding the actual date of remission of the malignancy. Nevertheless, as the reduction effectuated in the November 2007 rating decision is void, the appeal as to that issue is fully resolved. Increased Rating for Prostate Cancer As restoration of the 100 percent rating for prostate cancer has been granted, there remain no allegations of errors of fact or law for appellate consideration regarding the claim for an increased disability rating for prostate cancer in excess of 20 percent or 40 percent. Accordingly, the proper course for the Board is a dismissal of the appeal as to that issue. See 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002). Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). As the Board is granting restoration of the 100 percent rating for prostate cancer, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (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"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). ORDER Restoration of a 100 percent rating for adenocarcinoma of the prostate is granted. The issue of entitlement to a disability rating greater than 20 percent from February 1, 2008 to April 24, 2012, and greater than 40 percent since April 24, 2012, is dismissed. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs