Citation Nr: 1803678 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 17-06 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether a reduction in rating for prostate cancer, effective January 1, 2016, was proper. 2. Entitlement to an increased evaluation for residuals of prostate cancer, evaluated as noncompensable from January 1, 2016, to May 2, 2017, and evaluated as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1958 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. During the pendency of the appeal, the RO increased the disability rating for residuals of prostate cancer to 20 percent, effective May 3, 2017. Because the RO did not assign the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). 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 procedural requirements of 38 C.F.R. § 3.105 (e) were properly and appropriately completed in this case. 3. From January 1, 2016, to February 2, 2017, the Veteran's service connected residuals of prostate cancer have not been manifested by a compensable degree of voiding dysfunction, urinary tract infection, or renal dysfunction at any time throughout the appeal period. 4. From February 3, 2017, to May 2, 2017, the Veteran's residuals of prostate cancer are shown to be manifested by a nighttime awakening to void three to four times per night. 5. From February 3, 2017, the Veteran's residuals of prostate cancer were not manifested by urine leakage requiring the use of an appliance or absorbent materials, or obstructed voiding manifested by urinary retention requiring intermittent or continuous catheterization. CONCLUSIONS OF LAW 1. The reduction in the rating for prostate cancer residuals from 100 percent to as noncompensable rating, effective January 1, 2016, was proper. 38 U.S.C.A. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105 (e), 3.343, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 2. From January 1, 2016, to February 2, 2017, the criteria for a compensable evaluation for residuals of prostate cancer have not been met. 38 U.S.C.A §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 3. From February 3, 2017, to May 2, 2017, the criteria for a 20 percent rating, but no higher, for residuals of prostate cancer have been met. 38 U.S.C.A §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 4. From May 3, 2017, the criteria for a disability rating in excess of 20 percent for residuals of prostate cancer have not been met. 38 U.S.C.A §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The notice requirements for the appeal regarding the rating reduction for prostate cancer will be addressed in further detail below. Regardless, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Rating Reduction From July 24, 2014, to December 31, 2015, a 100 percent rating was assigned for the Veteran's prostate cancer. On and after January 1, 2016, to May 2, 2017, the Veteran's prostate cancer residuals have been rated as noncompensable. On and after May 3, 2017, the Veteran's prostate cancer residuals have been rated as 20 percent disabling. The Veteran appealed the October 2015 rating decision that reduced his disability rating for prostate cancer from 100 to noncompensable, effective January 1, 2016. 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, which evaluates malignant neoplasms of the genitourinary system, contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the AOJ'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). The Veteran's 100 percent and noncompensable percent evaluations were assigned under Diagnostic Code 7528, for malignant neoplasms of the genitourinary system, which assigns a 100 percent for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate criteria based on whichever genitourinary dysfunction predominates. A Note after Diagnostic Code 7528 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 evaluation 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 disability is to be rated on residuals, such as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. The Veteran was afforded a VA examination for prostate cancer in April 2015. The examiner noted that, after the Veteran was diagnosed with prostate cancer in May 2014, he underwent external beam radiation treatments, which were completed on August 1, 2014. The Veteran had not undergone treatment for prostate cancer since August 1, 2014. The examiner explained that the disease was in remission and that the date of completion of the radiation therapy was August 1, 2014. The Board accepts this as probative evidence that the Veteran's prostate cancer was in remission. This timeline also demonstrates a period of at least six months between the cessation of the Veteran's radiation treatment and the VA examination, during which a 100 percent rating was in effect. Thus, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, with respect to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In other words, this is in essence a staged rating case, but it is not a formal reduction case because of the temporal element of Diagnostic Code 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 Diagnostic Code 7528. When a rating reduction is warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction must be prepared, setting forth all of the material facts and reasons for the proposed reduction. 38 C.F.R. § 3.105 (e). The Veteran must then be notified of the contemplated action and the detailed reasons therefore and given 60 days to present additional evidence showing that compensation should be continued at the present level. Id. The Veteran must be also informed of the right to a predetermination hearing, if requested within 30 days. 38 C.F.R. § 3.105 (i)(1). If additional evidence is not received and a predetermination hearing is not requested within the applicable time periods, written notice of the final action, including the reasons for the decision and the supporting evidence, must be issued to the Veteran. 38 C.F.R. § 3.105 (e), (i). In the present case, the rating reduction results in a reduction of compensation benefits, and therefore VA must comply with the applicable notice requirements. 38 C.F.R. § 3.105 (e). A May 2015 proposed rating decision outlined in detail the material facts and the reasons behind the proposed reduction. In an August 2015 Notification Letter, the Veteran was informed of the proposed reduction, the type of evidence that should be submitted to prevent the reduction, the 60 day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days. The Veteran was allowed the 60 day period to submit evidence, and no request for a predetermination hearing was submitted. After allowing the Veteran the appropriate time periods to submit evidence or request a hearing, VA properly provided written notice of the final action in the form of an October 2015 rating decision, which reduced the Veteran's rating from 100 percent to noncompensable. In that rating decision, the RO notified the Veteran of the final decision, as well as the rationale and evidence supporting it. As VA provided proper notice of the proposed rating and the right to a predetermination hearing, allowed the requisite period of time for the submission of additional evidence and notified the Veteran of the final decision, VA has satisfied the notice requirements for a rating reduction. Thus, the discontinuance of the 100 percent rating for prostate cancer was proper. III. Increased Rating The Veteran seeks a compensable disability rating from January 1, 2016, to May 2, 2017, and a disability rating in excess of 20 percent thereafter, for residuals of prostate cancer. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. As discussed above, the Veteran's prostate cancer is rated under Diagnostic Code 7528, covering malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b, Diagnostic Code 7528. On remission, if there is no local reoccurrence or metastasis, the residuals shall be rated under an appropriate diagnostic code. 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. As discussed further below, renal dysfunction has not been found. There are three compensable forms of voiding dysfunction: urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Evaluations of urine leakage range from 20 percent to 60 percent; every rating requires the wearing of absorbent materials or the use of an appliance. Id. A 20 percent rating requires the wearing of absorbent materials which must be changed less than twice a day, a 40 percent rating requires the wearing of absorbent materials which must be changed two to four times per day, and a 60 percent rating requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Id. Evaluations of urinary frequency range from 10 percent to 40 percent: a 10 percent rating requires a daytime voiding interval between two and three hours or awakening to void two times per night, a 20 percent rating requires a daytime voiding interval between one and two hours or awakening to void three to four times per night, and a 40 percent rating requires a daytime voiding interval of less than one hour or awakening to void five or more times per night. Id. For a rating based on obstructed voiding, a 0 percent rating requires obstructive symptomatology with or without stricture disease requiring periodic dilatation 1 to 2 times per year. A 10 percent rating requires marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished flow rate (less than 10 cc/second); (3) Recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring period dilation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Id. At the April 2015 VA examination, no voiding dysfunction, renal dysfunction, and any other type of residual other than erectile dysfunction were found. The Board notes that service connection is already in effect for erectile dysfunction. In his April 15, 2016, Notice of Disagreement (NOD), the Veteran indicated that he had blood in his urine, his penis was deformed, and he would have to sit down to urinate. Sometimes, he would need to push to void or to complete voiding. A December 2016 Report of General Information documents a telephone conversation between the Veteran and a VA employee. During the call, the Veteran indicated that his residuals of prostate cancer had increased in severity. In his Substantive Appeal, received February 3, 2017, the Veteran reported that he would get up to urinate three to four times per night. During the day, he would go to the bathroom to urinate every two to three hours. He reported having some problems with incontinence during the day, having a weak stream, and not always being able to void when urinating. At the May 2017 VA examination, renal dysfunction was again not found. The examiner did identify voiding dysfunction, however. Voiding dysfunction did not cause urine leakage or the use of an appliance. The Veteran did have urinary frequency and obstructed voiding, however. Regarding urinary frequency, the Veteran had daytime voiding intervals between two and three hours. He would also awaken at night to void three to four times. Regarding obstructed voiding, the Veteran had markedly decreased force of stream and urinary urgency. As noted above, the Veteran seeks a compensable disability rating from January 1, 2016, to May 2, 2017, and a disability rating in excess of 20 percent thereafter, for residuals of prostate cancer. After a thorough review of the record, the Board finds that a compensable disability rating from January 1, 2016, to February 2, 2017, is not warranted. From February 3, 2017, to May 2, 2017, an increased 20 percent disability rating is warranted. From February 3, 2017, onward, a disability rating in excess of 20 percent is not warranted. From January 1, 2016, to February 2, 2017, there is no competent medical evidence to show symptoms that approximate a compensable rating for obstructed voiding, urinary frequency, or urine leakage. The Board acknowledges that the Veteran reported having symptoms resembling obstructed voiding in his April 2016 NOD. However, there is no evidence to suggest that his reported symptoms approximated marked obstructive symptomatology. Further, none of other criteria for a compensable rating were shown. The Board's finding is essentially made based on the lack of the requisite objective evidence sufficient to support the award of a higher disability rating under any avenue through which voiding dysfunction is rated. The Veteran did not describe voiding intervals of two to three hours during the day or awakening at night to void during this period. Further, there is no evidence that the Veteran required the use of absorbent pads or the use of an appliance for urine leakage. The Board also notes that no voiding or renal dysfunction were found at the April 2015 examination. The preponderance of evidence is against the award of a compensable rating for residuals of prostate cancer from January 1, 2016, to February 2, 2017. On February 3, 2017, however, the Veteran submitted his Substantive Appeal. Then, he reported that he would get up to urinate three to four times per night. During the day, he would go to the bathroom to urinate every two to three hours. This report, in conjunction with the same findings being objectively shown in the May 2017 VA examination, supports the award of a 20 percent evaluation for urinary frequency as of February 3, 2017, the date an increase became factually ascertainable. Beginning February 3, 2017, however, a disability rating in excess of 20 percent is not warranted. There is nothing in the record to suggest that the Veteran wore absorbent materials or required the use of an appliance to treat urine leakage. This was expressly denied at the May 2017 VA examination. Urine leakage was not shown in either VA examination. Thus, a rating in excess of 20 percent for urine leakage is not found on and after February 3, 2017. The Veteran has not been shown to have daytime voiding intervals less than one hour or the need to awaken to void five or more times per night. Thus, a disability rating in excess of 20 percent for urinary frequency is not shown. Finally, urinary retention requiring intermittent or continuous catheterization has not been shown, so a rating in excess of 20 percent under obstructed voiding has not been shown. In summary, the Veteran's residuals of prostate cancer do not include renal dysfunction. Further, from January 1, 2016, to February 2, 2017, the preponderance of the evidence is against a finding that the Veteran had a compensable voiding dysfunction. Beginning February 3, 2017, a 20 percent evaluation is warranted due to the Veteran's need to awaken to void three to four times per night. From that date, however, a disability rating in excess of 20 percent for the residuals of the Veteran's prostate cancer is not warranted. All potentially applicable diagnostic codes have been considered, and there is no basis on which to assign an evaluation in excess of 20 percent for the Veteran's residuals of prostate cancer. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). There is no reasonable doubt to resolve in this matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The reduction in rating of service-connected prostate cancer from 100 percent to noncompensable, effective January 1, 2016, was proper. Entitlement to a compensable disability rating for residuals of prostate cancer from January 1, 2016, to February 2, 2017, is denied. Entitlement to a 20 percent disability rating, but no higher, for residuals of prostate cancer from February 3, 2017, to May 2, 2017, is granted. Entitlement to a disability rating in excess of 20 percent for residuals of prostate cancer from May 3, 2017, is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs