Citation Nr: 1620529 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 15-05 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction in the disability rating for prostate cancer residuals from 100 percent to 40 percent, effective January 1, 2015, was proper. 2. Entitlement to a rating in excess of 40 percent for prostate cancer residuals. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from November 1951 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2015, the Board remanded the appeal. The Board acknowledges that rating reduction claims are separate from increased rating claims. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the Agency of Original Jurisdiction (AOJ) addressed the Veteran's entitlement to an increased rating in the December 2014 Statement of the Case. Additionally, the Veteran's representative recently asserted that the Veteran's prostate cancer residuals are "more severe," in that he "uses an appliance and wears absorbent material that is changed more than four times per day." See March 2016 Appellant's Brief. Therefore, the Board finds that both the increased rating claim and the propriety of the rating reduction are within its jurisdiction. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement a rating in excess of 40 percent for residuals of prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. A May 2014 rating decision proposed to reduce the rating for prostate cancer from 100 percent disabling to 40 percent disabling. 2. The proposed reduction was implemented in a September 2014 rating decision, effective January 1, 2015, and was made in compliance with applicable due process laws and regulations. 3. The medical evidence at the time of the reduction demonstrated improvement in the Veteran's prostate cancer residuals. There had been no local reoccurrence or metastasis of the Veteran's prostate cancer; surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, in more than six months. CONCLUSION OF LAW The reduction of the disability rating for prostate cancer effective January 1, 2015, was proper. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.115a, 4.115b, Diagnostic Code 7528 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran and his representative assert that reduction of the 100 percent rating for the claimant's prostate cancer residuals was improper because the Veteran was not given the requisite time to respond to the proposed reduction; the regulations governing stabilized ratings apply to the claim because the 100 percent rating was in effect for five years; and because he continued to meet the criteria for the 100 percent rating. He has not advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the veteran's condition). Specifically, where a reduction in the evaluation of a service-connected disability or employability status is considered warranted, and the reduction would result in the 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 must be notified at his or her last address of record of the action contemplated and furnished detailed reasons therefore and must be given 60 days for the presentation of new evidence to show that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). Here, a September 2010 rating decision granted the Veteran service connection for prostate cancer and assigned a 100 percent rating under 38 C.F.R. § 4.115b, Diagnostic Code 7528, effective from May 24, 2010. In May 2014, the Veteran was provided a VA examination. A subsequent May 2014 rating decision proposed reducing the Veteran's rating for his prostate cancer to 40 percent. In a letter dated later in May 2014, the RO notified the Veteran at his last address of record of the reason for this proposal, invited him to file additional evidence in opposition to the reduction, and offered him the opportunity for a personal hearing. In a September 2014 rating decision, the RO implemented the proposed reduction and assigned January 1, 2015, as the effective date for the 40 percent rating for his prostate cancer. Initially, the Board finds that the procedural guidelines found at 38 C.F.R. § 3.105(e) were followed by the RO. As stated above, the Veteran was notified of the RO's intent to reduce his rating for his prostate cancer residuals by a letter dated in May 2014 to his address of record. Thereafter, he was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. See 38 C.F.R. § 3.105(e). Final action to reduce the rating for his prostate cancer was taken pursuant to 38 C.F.R. § 3.105(e) in a September 2014 decision. The rating reduction was made effective beginning January 1, 2015. Consequently, the Board finds that notwithstanding the Veteran's claims to the contrary, the RO did not violate any of the procedures required under 38 C.F.R. § 3.105(e). Additionally, the Board finds that a rating reduction such as in the current appeal, which involves a Diagnostic Code with a temporal nature, are not governed by the provisions of 38 C.F.R. § 3.344 regarding stabilized ratings (i.e., ratings that have been in effect for five years or more) even if the 100 percent rating had been in effect for 5 years, which it had not. See Rossiello v. Principi, 3 Vet. App. 430, 433 (1992) (refusing to reinstate the veteran's 100 percent disability rating under a Diagnostic Code with a two-year temporal requirement where the "rating ceased to exist two years 'following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure,'" and there was no evidence of local recurrence or metastases). Therefore, having decided that the process required to reduce the Veteran's rating was correctly followed by the RO, the next question for the Board to address is whether the reduction was warranted. As noted above, the Veteran's prostate cancer was rated as 100 percent disabling from May 24, 2010, to January 1, 2015, under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Moreover, 38 C.F.R. § 4.115b, Diagnostic Code 7528, which pertains to malignant neoplasms of the genitourinary system, provides: following the cessation of surgery, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months and 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). The rating criteria also provide that if there has been no local reoccurrence or metastasis, then a Veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. In this case, the medical evidence of record shows that the Veteran's prostate cancer was successfully treated and that surgical, x-ray, antineoplastic chemotherapy, and other therapeutic procedures ceased in March 2010, years prior to the May 2014 VA medical examination. In this regard, in October 2014, Dr. Bernstein reported that the Veteran was diagnosed with prostate cancer in September 2009, indicated that the Veteran's PSA before being diagnosed with the cancer was elevated at 4.9, and that he had finished radiation therapy in March 2010. Dr. Bernstein characterized the status of the Veteran's prostate cancer as "active" with completed treatment, and indicated the Veteran was currently in a watchful waiting status. However, the Board finds that Dr. Berstein's opinion that the Veteran's prostate cancer is "active" is not probative, because he did not cite to any clinical evidence in support of his opinion, and contradicts his other findings in the report that treatment had ceased over four years prior. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). Likewise, the Board finds that the Veteran's lay claims regarding having active prostate cancer lack probative value because, while the is competent to report on what he sees and feels, diagnosing active prostate cancer requires special required medical training and equipment which he does not have. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). On the other hand, the Board finds very probative the Veteran's VA and private treatment records since completing radiation therapy in March 2010, which are negative for objective evidence of his prostate cancer being active; requiring additional treatment such as surgery, antineoplastic chemotherapy, or other therapeutic procedure; or having local reoccurrence or metastasis. Likewise, the Board finds very probative the findings by the May 2014 VA examiner who, after a review of the record on appeal and an examination of the Veteran, reported that the Veteran's prostate cancer was in remission with completion of radiation treatment in March 2010 as well as opined that there was no objective findings of active disease during the examination. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). Therefore, the Board finds that the most probative evidence of record are the Veteran's treatment records and the May 2014 VA examination report, which show that his prostate cancer was not active; required additional treatment such as surgery, chemotherapy, or other therapeutic procedure; or had a local reoccurrence or metastasis at any time during the pendency of the appeal. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Thus, in the absence of a local reoccurrence or metastasis of the Veteran's prostate cancer, or surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure for more than six months prior to the examination; reduction in the 100 percent rating was proper. ORDER The reduction in the disability rating for prostate cancer residuals from 100 percent to 40 percent, effective January 1, 2015, was proper. REMAND As noted in the Introduction, the Veteran's representative has asserted a worsening of the Veteran's residuals of prostate cancer since he was last examined by VA in May 2014, warranting an updated VA examination. Any outstanding treatment records should also be secured. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) . Expedited handling is requested.) 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding records of any private treatment of the Veteran's prostate cancer residuals. 3. Then obtain a VA examination to ascertain the current severity of the Veteran's prostate cancer residuals. All indicated tests and studies should be performed, and all findings reported in detail. 4. Then, after taking any additional development deemed necessary, readjudicate the issue on appeal. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs