Citation Nr: 1747262	
Decision Date: 10/23/17    Archive Date: 10/31/17

DOCKET NO.  14-32 269A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether the reduction from a 100 percent disability rating to a 60 percent disability rating for service-connected residuals, status post transurethral resection of bladder tumor (TURBT) from prostate cancer with metastasis to the bladder with fecal incontinence, effective February 1, 2013, was proper.

2.  Entitlement to higher evaluation for residuals, status post TURBT from prostate cancer with metastasis to the bladder with fecal incontinence rated 60 percent from February 1, 2013.

3.  Entitlement to a separate, compensable rating for fecal incontinence associated with service-connected residuals, status post TURBT from prostate cancer with metastasis to the bladder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Laura E. Collins, Counsel


INTRODUCTION

The Veteran served on active duty from August 1947 to November 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board has recharacterized the issues on appeal as deemed appropriate.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to a separate, compensable rating for fecal incontinence associated with service-connected residuals, status post TURBT from prostate cancer with metastasis to the bladder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The discontinuance of the 100 percent evaluation for prostate cancer is not a formal rating reduction in this case, as the "reduction" was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528.

2.  The RO met all procedural requirements in executing the reduction of the disability rating for residuals, status post TURBT from prostate cancer with metastasis to the bladder with fecal incontinence, effective February 1, 2013.

3.  The Veteran is in receipt of the maximum schedular rating for voiding dysfunction associated with his prostate cancer residuals, and there is no associated renal dysfunction.


CONCLUSIONS OF LAW

1.  The discontinuance of the 100 percent evaluation, effective February 1, 2013, for residuals, status post TURBT from prostate cancer with metastasis to the bladder with fecal incontinence was proper.  38 U.S.C.A. 38 C.F.R. § 1155, 5107 (West 2014); 38 C.F.R. § 3.105(e), 4.115b, Diagnostic Code 7528 (2016).

2.  The criteria for a rating in excess of 60 percent for service-connected residuals, status post TURBT from prostate cancer with metastasis to the bladder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Propriety of Reduction

In this case, a May 2002 rating decision granted service connection for residuals, status post TURBT from prostate cancer with metastasis to the bladder with fecal incontinence and assigned a 100 percent disability rating.  A June 2012 rating decision proposed to reduce the evaluation to 60 percent, and a November 2012 rating decision effectuated that reduction, effective February 1, 2013.

Initially, the Board has considered whether the claim at issue would be most appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. § 3.343 and 3.344.  However, the Board does not find that these provisions are applicable in the present case.  This is because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals.  Therefore, the RO's action was not a "rating reduction," as that term is commonly understood.  See Rossiello v. Principi, 3 Vet. App. 430, 432-33(1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). 

Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system (i.e., prostate cancer) is assigned a 100 percent evaluation.  However, a Note following that Diagnostic Code, explains that following the cessation of surgical, X-ray, antineo-plastic 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 section 3.105(e) of this chapter.  If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.  See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note (2016). 

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines.  The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction.  The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing.  Then a rating action will be taken to effectuate the reduction.  38 C.F.R. § 3.105(e).  The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires.  38 C.F.R. § 3.105(e), (i)(2)(i).

In other words, this is in essence an increased rating case, as opposed a formal reduction case because of the temporal element of DC 7528.  In short, the rating reduction in this case was procedural in nature and by operation of law.  The Board only has to determine if the procedural requirements of 38 C.F.R. § 3.105 (e) were met and if the reduction was by operation of law under DC 7528.

Here, the procedural requirements were properly carried out by the RO.  

The examination upon which the reduction is based was a VA prostate cancer examination conducted on June 12, 2012.  It noted that the cancer was in remission, treatment was completed, and the diagnosis was in watchful waiting status.  PSA showed no biochemical evidence of recurrence.

On July 17, 2012, the RO notified the Veteran of a proposed rating reduction, setting forth all material facts and reasons for the reduction.  At that time the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced, and to request a predetermination hearing if desired.  The Veteran requested an extension of time until September 24, 2012, to submit evidence.  In September 2012, he submitted evidence and argument, but did not request a predetermination hearing.  The RO took final action to reduce the disability rating in a November 2012 rating decision, in which the rating was reduced from 100 to 60 percent, effective February 1, 2013.  The RO informed the Veteran of this decision by letter dated November 30, 2012.

Based on these facts, the Board finds that the procedure for discontinuing the Veteran's 100 percent evaluation for his prostate cancer residuals was appropriately completed in this case in accordance with 38 C.F.R.§ 3.105 (e).

In considering the evidence of record under the laws and regulations as set forth above, the Board also concludes there that is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under DC 7528 after February 1, 2013.  See 38 C.F.R. § 4.7.  The Veteran is no longer receiving any surgical, X-ray, antineo-plastic chemotherapy or other therapeutic procedure for prostate cancer, which is the requirement for a 100 percent disability rating.  The question remains as to whether a higher rating is warranted for residuals of the Veteran's prostate cancer; this is addressed further below. 



II. Increased Rating for Residuals, Status-post TURBT from Prostate Cancer with Metastasis to the Bladder with Fecal Incontinence

The Veteran is in receipt of a 60 percent rating for his service-connected prostate cancer residuals, effective from February 1, 2013.  The Board finds that since discontinuance of his 100 percent evaluation beginning February 1, 2013, a higher is not warranted.

As noted, under Diagnostic Code 7528, active malignant neoplasms of the genitourinary system are rated as 100 percent disabling. If there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115 (b).

Voiding dysfunctions are addressed under 38 C.F.R. § 4.115a, which directs that the particular condition be rated as urine leakage, urinary frequency, or obstructed voiding.  The Veteran's predominant residual of his prostate cancer is voiding dysfunction, as reflected by urinary leakage.  Thus, based on the competent evidence of record the board concludes that the Veteran's disability is properly rated under the rating criteria for voiding dysfunction. 

Voiding dysfunction is rated as either urine leakage, frequent, or obstructed voiding. 38 C.F.R. § 4.115a.  A 60 percent evaluation is assigned for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.  This is the maximum rating permitted under urine leakage, frequent, or obstructed voiding.

An evaluation in excess of 60 percent is awarded only for renal dysfunction which caused persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.  The Veteran does not allege, and the evidence of record does not support a finding, that his residuals of prostate cancer included renal dysfunction.  This residual is not identified on the June 2012 VA examination report or in the VA treatment records or submissions from the Veteran's treating physicians.  As such, an increased evaluation under 38 C.F.R. § 4.115a for renal dysfunction is not warranted.

In sum, the preponderance of the evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 60 percent for residuals of prostate cancer for the period increased rating period on appeal.  Thus, the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  There are no additional expressly or reasonably raised issues presented on the record.


ORDER

The discontinuance of the 100 percent evaluation for residuals of prostate cancer was proper.

A rating in excess of 60 percent for service-connected residuals, status post TURBT from prostate cancer with metastasis to the bladder is denied.


REMAND

The Veteran seeks entitlement to a separate, compensable rating for fecal incontinence associated with service-connected residuals, status post TURBT from prostate cancer with metastasis to the bladder.

A VA prostate cancer examination conducted in June 2012 shows that in addition to "severe urinary incontinence" including voiding dysfunction, the Veteran also experiences "severe fecal incontinence secondary to irradiation."  

In a letter submitted by the Chief of Urology at Walter Reed National Military Medical Center, one of the Veteran's physicians indicated that in addition to the Veteran's urinary frequency and nocturia, he also has poor fecal control with explosive stools with little warning when he urinates.  

Review of the file reflects that an examination to determine the degree of disability due to the fecal incontinence was scheduled on July 2, 2012, but the Veteran failed to report.  The examination request was cancelled on July 16, 2012 with a note indicating that "the Veteran failed to RSVP."  In his February 2013 notice of disagreement, the Veteran asserted that he had never received any notice of the scheduled examination.  The Board notes that the claims file does not contain a copy of the notice letter informing the Veteran of the date and time of his July 2012 VA examination.  Significantly, there was no attempt to reschedule the examination after the Veteran indicated that he had not received notice.

In light of the state of the record, the Veteran must be rescheduled for an examination.  On remand, the AOJ should contact the Veteran and confirm his current address.  Thereafter, he should be scheduled for a new VA examination at an appropriate VAMC.  38 U.S.C.A § 5103A(d); 38 C.F.R. § 3.159(c).  The Veteran must be provided written notice of the time, date, and location of this examination, and the notice should also inform him of the consequences for failing to report to the examination.  See 38 C.F.R. § 3.65 (b).  A copy of this notice letter must be associated with the claims file.  Hyson v. Brown, 5 Vet. App. 262, 265(1993) (VA has the burden to demonstrate that notice was sent to the claimant's last address of record).  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Update the claims file with outstanding VA treatment records.

2.  Contact the Veteran and confirm his current address.  Schedule him for a VA examination at an appropriate VAMC to determine the extent and severity of his fecal incontinence associated with service-connected prostate cancer residuals.  The claims file should be reviewed by the examiner.  All indicated tests must be conducted, and all symptoms associated with the Veteran's fecal incontinence associated with his service-connected residuals of prostate cancer must be reported in detail.

The examiner is further asked to comment on the Veteran's ability to function in an occupational environment in light of his service-connected prostate cancer residuals, to include voiding dysfunction and fecal incontinence.  In discussing the functional impairment caused solely by the service-connected residuals, the examiner should document any reported education and work experience.  

3.  Finally, readjudicate the appeal.  If the benefits sought remains denied, issue a supplemental statement of the case and return the case to the Board. 

The appellant 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 remanded by the Board of Veterans' Appeals 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).



______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs