Citation Nr: 1319995	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  11-12 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Propriety of the reduction of the evaluation for residuals of prostate cancer from 100 percent to 40 percent.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel


INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from November 1958 to June 1977.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which reduced the Veteran's disability rating from 100 percent to 40 percent.  

In March 2013, the Board remanded the case for further development, which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  The Veteran was diagnosed as suffering from prostate cancer in July 2007.  

2.  In a January 2010 rating decision, the RO proposed reducing the Veteran's rating to 40 percent; in April 2010, the RO issued a second rating decision effectuating the reduction effective July 1, 2010.

3.  The Veteran underwent a urethral stricture on April 22, 2010, a surgical procedure that was necessitated by the treatment for his service-connected prostate cancer.  


CONCLUSION OF LAW

The criteria for reducing the rating for residuals of prostate cancer from 100 percent to 40 percent in April 2010 were not met.  38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.115a, 4.115b, Diagnostic Code 7528 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and to Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

II.  Propriety of the Reduction

The Diagnostic Code covering prostate cancer assigns a 100 percent initial rating.  That rating may be reduced "following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure."  In such cases, following a mandatory VA examination, if there has been no local reoccurrence or metastasis, then the residuals of prostate cancer are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115b, Diagnostic Code 7528.  

The Veteran is service-connected for prostate cancer, a condition he was first diagnosed as suffering from in July 2007.  The RO granted service connection for his condition in an August 2007 rating decision, assigning a 100 percent rating.  

The Veteran underwent a VA genitourinary examination in December 2009.  Based on the results of this examination, the RO proposed reducing his rating from 100 percent to 40 percent in a January 2010 rating decision.  In April 2010, the RO issued a second rating decision that effectuated this reduction effective July 1, 2010.

In an April 2010 notice of disagreement, the Veteran wrote that he had undergone a prostate operation within the last month.  An April 22, 2010 record from Dr. W.F.L. reflects that the Veteran underwent a urethral stricture on that date.  The examiner from an April 2013 VA examination stated that this procedure "would be most likely due to [the Veteran's] radiation therapy that he had for his prostate cancer."  There is no evidence to the contrary.

The rating for prostate cancer may only be reduced from 100 percent after the cessation of surgical procedures.  As the examiner from the Veteran's April 2013 VA examination determined that the Veteran's urethral stricture was performed in response to the radiation therapy he underwent for his prostate cancer, this April 2010 procedure must be considered a surgical procedure that falls within the definition provided by the Diagnostic Code.  

Accordingly, the reduction was improper; restoration of the 100 percent rate is warranted.  


ORDER

The reduction of the evaluation for residuals of prostate cancer from 100 percent to 40 percent was improper; a 100 percent rating is restored, effective July 1, 2010.  




____________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs