Citation Nr: 1800894 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-31 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction in disability rating from 100 percent to 20 percent for prostate cancer, effective as of June 1, 2011, was proper. 2. Entitlement to a disability rating in excess of 20 percent for residuals of prostate cancer, from June 1, 2011. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from August 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which decreased the evaluation assigned for prostate cancer from 100 percent to 20 percent, effective as of June 1, 2011. Jurisdiction of the matter is now with the RO in St. Petersburg, Florida. The Board notes that while the Veteran has challenged the propriety of the initial rating reduction, he has also contested the adequacy of the 20 percent evaluation assigned subsequent to the reduction, which is a separate matter. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (rating reduction claims are separate from increased ratings claims). In October 2015 and March 2016, the Board remanded the appeal to afford the Veteran a hearing before the Board. In October 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's electronic claims file. As a hearing has been conducted, the Board will proceed to adjudicate the claims currently on appeal. During the October 2016 hearing, the Veteran, through his representative, indicated that new medical evidence had been submitted with VA in September 2016. This submission included a waiver of RO consideration for this evidence. Therefore, the Board will proceed to review this evidence and adjudicate the appeal The Board notes that in March 2013, the RO issued a rating decision that denied service connection for a kidney infection. The Board acknowledges that the Veteran filed a notice of disagreement to the denial of entitlement to service connection for a kidney infection in May 2013; however, as a formal appeal has not yet been filed, the issue is not ripe for adjudication by the Board. The Board acknowledges that the record reflects that the Veteran has erectile dysfunction due to his service-connected prostate cancer. However, service connection was established for this disability as a separate and distinct disability; and he has also been awarded special monthly compensation based upon loss of use of creative organ as a result thereof. The Veteran has not disagreed with the rating assigned for this disability so as to give the Board jurisdiction on that matter. The Board further notes that prior to his current representation, the Veteran was represented by the National Association of County Veterans Service Officers (NACVSO). VA received a signed VA Form 21-22 in June 2016, changing representation from the NACVSO to the Florida Department of Veterans Affairs. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). FINDINGS OF FACT 1. In November 2010, the RO proposed to reduce the disability rating for prostate cancer from 100 percent disabling to 20 percent disabling. 2. In a March 2011 rating decision, the RO implemented the proposed reduction in the disability rating for prostate cancer, effective as of June 1, 2011, and was made in compliance with applicable due process laws and regulations. 3. The medical evidence at the time of the reduction in the disability rating demonstrated improvement in the Veteran's service-connected prostate cancer. 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. 4. From June 1, 2011, the Veteran's service-connected prostate cancer is manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day but not more than four times per day. CONCLUSIONS OF LAW 1. The reduction in the disability rating for the Veteran's service-connected prostate cancer from 100 percent to 20 percent, effective as of June 1, 2011, was proper. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.105(e), 3.321(b)(1), 3.343(a), 3.344, 4.1-4.7, 4.73, 4.115b, Diagnostic Code 7528 (2017). 2. From June 1, 2011, the criteria for a disability rating of 40 percent for the Veteran's service-connected prostate cancer has been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has challenged the propriety of the initial rating reduction of the service-connected prostate cancer. He has also contested the adequacy of the 20 percent evaluation assigned subsequent to the reduction, which is a separate matter. Propriety of Reduction 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) (2017). In this case, service connection for prostate cancer was established in a February 2007 rating decision, in which the RO assigned a 100 percent rating, effective as of September 28, 2006. By way of a November 2010 rating decision, the Veteran was notified of the proposed reduction in his service-connected prostate cancer and associated correspondence dated in that same month. The actual reduction was subsequently effectuated by a March 2011 rating decision with an effective date of June 1, 2011. Therefore, it appears that proper procedures were followed in reducing the assigned rating for this disability. The Board initially notes that a rating reduction such as in the current appeal, which involves a Diagnostic Code with a temporal nature, is 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 five years. 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). The Veteran's prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. Under this code, a 100 percent rating is warranted for malignant neoplasms, and, 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 evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). As in this case, if there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. In short, a 100 percent rating is warranted for cases of active disease process and treatment, and for a period of at least six months following the cessation of such. Here, thankfully, the record reflects the Veteran's prostate cancer has been in remission since 2006, and that he has not received active treatment for such since that period. In pertinent part, the September 2010 and June 2012 VA examinations found the Veteran's prostate cancer was in remission. The September 2010 VA examination, which is the basis of the Veteran's reduction in compensation, found the Veteran had a diagnosis of adenocarcinoma of the prostate, in remission. The Veteran completed antineoplastic treatment in June 2006. The examiner noted that the Veteran's PSA in September 2006 dropped to 0.92. In March 2010, his PSA further dropped to 0.10. The Veteran had voiding dysfunction that required the use of two absorbent pads per night for protection. The Veteran's voiding dysfunction required the intermittent use of an appliance. The voiding dysfunction caused daytime voiding interval between one and two hours. The voiding dysfunction did not cause signs or symptoms of obstructed voiding. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections; however, the examiner noted that the Veteran passed two kidney stones in November 2009, unrelated to the Veteran's prostate cancer. The Veteran had erectile dysfunction as a residual of prostate cancer treatment. Likewise, a June 2012 VA examination report indicates that the Veteran's prostate cancer was in remission, and that the Veteran completed treatment in June 2006. The examiner noted that the Veteran's PSA in June 2011 dropped to 0.06. The Veteran had voiding dysfunction, which did not cause urine leakage. The Veteran's voiding dysfunction did not require the use of an appliance. The voiding dysfunction caused daytime voiding interval between one and two hours, and nighttime awakening to void two times. The voiding dysfunction did not cause signs or symptoms of obstructed voiding. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. The Veteran had erectile dysfunction as a residual of prostate cancer treatment. However, in a December 2012 private medical record, Dr. R.G. indicated that it was his impression that the Veteran had prostate cancer and that it was not inactive. The opinion provided by Dr. R.G. is inadequate, as it is unclear as to whether he reviewed relevant treatment records. Moreover, Dr. R.G. did not provide a rationale for the opinion. Thus, the Board finds the medical opinion of Dr. R.G. to have limited probative value. The Board places great probative weight on the opinions reached in the September 2010 and June 2012 VA examination reports. In contrast to the opinion reached by Dr. R.G., the September 2010 and June 2012 VA examiners provided a rationale for the conclusions reached and provided citations to the Veteran's documented medical history, including PSA screening. While the Veteran will clearly need to be checked regularly, these opinions account for the cessation of treatment for the Veteran's prostate cancer noted in the medical records. Thus, these opinions are of greater probative weight than the opinion reached by Dr. R.G. As a result of the findings in the September 2010 VA examination, the RO reduced the Veteran's disability rating from 100 percent to 20 percent for service-connected prostate cancer. The Board finds the notice provisions of 38 C.F.R. § 3.105(e) have been satisfied and the reduction in compensation is warranted, based on the September 2010 examiner's finding that the Veteran's prostate cancer was in remission. The Veteran was experiencing voiding frequency and urgency, but was managing his symptoms and wore pads during the night. The Board finds that the preponderance of the evidence shows improvement such that reduction was warranted. The reduction occurred more than six months following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, at which point, there was no local recurrence or metastases. There was no longer any active disease and the evidence showed that a 20 percent disability rating was appropriate based on the voiding frequency. Accordingly, the Board finds that the preponderance of the evidence supported the reduction in rating and that the rating reduction was procedurally proper. 38 U.S.C. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for Prostate Cancer, Effective June 1, 2011 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Diagnostic Code 7528 provides 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 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, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2017). As there is no evidence of renal dysfunction present for the Veteran, the Board will consider a higher rating under voiding dysfunction. Voiding dysfunction is rated based on urinary frequency, leakage, or obstructed voiding. A 20 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is assigned for voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is assigned for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a (2017). In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2017). As previously indicated, at a June 2012 VA examination, the examiner noted that the Veteran's prostate cancer was in remission. The examiner reported that the Veteran had voiding dysfunction that did not cause urine leakage or use of an appliance. The examiner noted that the Veteran's voiding dysfunction caused daytime voiding interval between one and two hours, and nighttime awakening to void two times. The Veteran's voiding dysfunction did not cause signs or symptoms of obstructed voiding. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. The examiner opined that the Veteran's prostate cancer did not impact his ability to work. In a July 2016 Disability Benefits Questionnaire (DBQ) completed by Dr. J.J., it was noted that the Veteran had voiding dysfunction that caused urine leakage, requiring the use of absorbent materials which must be changed two to four times per day. Dr. J.J. noted that the Veteran's voiding dysfunction did not require the use of an appliance. Dr. J.J. further noted that the Veteran's voiding dysfunction caused nighttime awakening to void two times. The Veteran's voiding dysfunction did not cause signs or symptoms of obstructed voiding. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. The evidence shows that the severity of the Veteran's void dysfunction has increased, requiring the wearing of absorbent materials which must be changed two to four time per day. The Board finds that the evidence does not show the use of an appliance or that absorbent materials must be changed more than four times per day. The evidence also does not show obstructed voiding or renal dysfunction. Accordingly, the Board finds that the evidence supports the assignment of a 40 percent rating, but not higher, for residuals of prostate cancer, effective as of June 1, 2011. The Board finds that the preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Procedural Duties VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). ORDER The reduction of the rating for prostate cancer from 100 percent to 20 percent, effective as of June 1, 2011, was proper and the claim for restoration is denied. Entitlement to a disability rating in excess of 20 percent for residuals of prostate cancer, from June 1, 2011, is granted. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs