Citation Nr: 18142252 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 07-35 463 DATE: October 15, 2018 ORDER The rating reduction for residuals of prostate cancer from a 100 percent evaluation to a 60 percent evaluation was proper, and the appeal is denied. FINDINGS OF FACT In an October 2006 rating decision, the RO reduced the disability evaluation for the Veteran’s service-connected prostate cancer from a 100 percent evaluation to a 10 percent evaluation, effective February 1, 2007. In a January 2008 rating decision, the RO retroactively changed the reduction to 60 percent, effective February 1, 2007. 2. The RO’s decision to reduce the evaluation for the Veteran’s service-connected prostate cancer from a 100 percent evaluation to a 60 percent evaluation was supported by the evidence contained in the record at the time of the reduction and was made in compliance with applicable due process laws and regulations. CONCLUSION OF LAW The reduction of the disability rating for prostate cancer from a 100 percent evaluation to a 60 percent evaluation was proper. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Navy from January 1962 to May 1966. This claim was previously before the Board in February 2017. The remand directives have been followed and adjudication of this appeal may proceed. Whether the reduction of the evaluation for prostate cancer from 100 percent to 60 percent, effective February 1, 2007, was proper. In September 2005, the RO granted service connection for prostate cancer and assigned a 100 percent evaluation, under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528, effective May 31, 2005. By an October 2005 rating decision, the RO proposed reducing the Veteran’s 100 percent evaluation to a 10 percent evaluation. In an October 2006 rating decision, the RO reduced the 100 percent evaluation to a 10 percent evaluation, effective February 1, 2007. In January 2007, the Veteran submitted a notice of disagreement to the RO’s October 2006 rating decision, contending that his service-connected prostate cancer warranted, at minimum, a 60 percent evaluation. By a January 2008 rating decision, the RO increased the 10 percent evaluation to 60 percent, effective February 1, 2007. Thus, as the evaluation for the Veteran’s service-connected prostate cancer was essentially reduced from 100 percent to 60 percent, the analysis in this case will focus on whether the reduction was proper based on the evidence of record. The Veteran was granted a 100 percent evaluation for prostate cancer under 38 C.F.R. § 4.115b, DC 7528. DC 7528, which pertains to malignant neoplasms of the genitourinary system, provides: following the cessation of surgery, 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. 38 C.F.R. § 4.115b, DC 7528. The Board notes that the claim at issue is not a formal reduction under the substantive provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344 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. Diagnostic Code 7528 requires assignment of a 100 percent evaluation for a finite period of time, followed by the requirement that the disorder thereafter be rated based on residuals, the assignment of a lower disability rating based on those residuals does not constitute a reduction. Accordingly, the Board must only 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. The Veteran, as well as the Court in the Joint Motion for Remand, noted that DC 7528 provides that an examination must be conducted six months following the cessation of the surgical, x-ray, chemotherapy or other therapeutic procedure. However, the Board finds this interpretation to be correct, but not in the way the Appellant argues. Diagnostic Code 7528 states that an examination must take place six months after cessation of therapy or treatment, not six months after the grant of the 100 percent rating. The evidentiary record notes that the Veteran was granted the 100 percent rating for treatment that he received from Dr. M, the Veteran’s private physician, for his prostate cancer from January 26, 2004 through February 27, 2004. In the rating decision from September 2005, the RO clearly states that they were scheduling an examination immediately to determine the Veteran’s current treatment and residuals. The RO was informing the Veteran of this, because more than six months had passed since the cessation of treatment. As part of the claim, the Veteran was scheduled for an VA examination in September 2005 to determine the current severity of his disability. In September 2005, a VA examination noted that in October 2003, stage II adenocarcinoma of the prostate was diagnosed, with a Gleason score of 7 and a prostate-specific antigen (PSA) score of 5.6. It was further noted that since undergoing brachytherapy in April 2004, the Veteran had been following-up with a urologist every three to six months, and that at his last visit a few months prior, he had a PSA score of 1.4. The Veteran reported that for the past two years, he had been experiencing occasional nocturia once per night, with some change in sequence. He also reported occasional hesitancy, with some post-voidal drip. It was reported that the Veteran had a Foley catheter when he was being treated for pneumonia in 2003, but he had no catheterization either intermittently or continuously since that time. It was further reported that the Veteran was not receiving any kind of treatment for his prostate cancer in the form of injection or tablet. The Veteran denied any significant change in his sexual function, except slow decline that he thought was partly due to his blood pressure medications and age. Physical examination revealed normal adult male genitalia, with no penile discharge and no testicular masses. The assessment was stage II adenocarcinoma of the prostate with a Gleason score of 7 and PSA scores of 5.6 in October 2004 and 1.4 in June 2005. It was noted that there was no recurrence of prostate cancer at the time of the examination. The Board finds that the RO procedurally complied with the procedural requirements regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. For the reasons set forth above, the Board finds that the discontinuance of a 100 percent rating for prostate cancer was proper. In Joint Motion stated that VA must determine whether was sufficient evidence at the time of the reduction as to whether the Veteran’s cancer had metastasized. JMR at 4. However, determining whether the Veteran’s cancer had metastasized, is not a question of whether the reduction was proper, that is question of whether the Veteran has been afforded the appropriate rating for his service-connected disability. However, the JMR clearly states “the matter involved here is a rating reduction matter, and the Board must comply with the protections afforded by a regulation when reducing a rating.” As such, the Board notes that the issues of entitlement to an increased evaluation is not before the Board at this time. The preponderance of the evidence shows that the reduction of the evaluation for prostate cancer from 100 percent to 60 percent, effective February 1, 2007, was proper. As such, the benefit of the doubt doctrine is inapplicable, and the appeal must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra Schedular Evaluation Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran’s circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria under the Rating Schedule reasonably describe the Veteran’s disability level and symptomatology, then the Veteran’s disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996) (when service-connected disability affects employment “in ways not contemplated by the rating schedule,” § 3.321(b)(1) is applicable). Exceptional cases for contemplate a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). Here, the Board finds that the schedular criteria contemplate the manifestations of the Veteran’s prostate cancer. Moreover, there is no evidence that the Veteran’s service-connected prostate cancer has required any hospitalization or interfered with employment subsequent to the date of the reduction to a 60 percent rating. There have been no hospitalizations and the evidence establishes the Veteran was employed up to 32 hours per week as a security guard. The Appellant has made the claim that his disability has caused marked interference with employment, because he made a statement in 2007 that he had continuous difficulty seeking employment because he spends a minimum of a half day to three quarters of the day in the bathroom. There is also a statement by Dr. F., in 2007, that the Veteran was unable to work due to his urinary and bowel frequency. A December 2006 private treatment record indicated that the Veteran was experiencing bowel movements several times per day, as well as urinary frequency at least 12 times per day. However, the Board also notes that the Veteran was subsequently employed as a security guard from September 2007 to October 2013 with weekly hours varying between 32 and 22.5 hours per week. As a part of claim, the Board requested that the Director of Compensation services make a determination as to whether there is sufficient evidence to warrant an extra-schedular rating for the Veteran’s service connected prostate disability. The Director agreed that the increased evaluation for residuals of prostate cancer is not warranted. The Director noted that available medical evidence demonstrated that all residuals of the prostate cancer have been appropriately evaluated. Specifically, the evidentiary record did not demonstrate that the symptomatology consistently associated with the residuals of prostate cancer utilized to assign the current and past evaluations warrants an increased evaluation on a schedular or extra-schedular basis for any time period. While the opinion of the Director concluded that TDIU was not warranted on an extraschedular basis, such opinion is not binding on the Board. The Director’s extraschedular decision is one of fact, and is reviewable by the Board on a de novo basis; it may serve to inform the Board’s review, but it is not evidence. See Wages v. McDonald, 27 Vet. App. 233, 238 (2015); see also Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321 (b) extraschedular adjudication, namely, Director of Compensation and Pension decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Nevertheless, as detailed below, the Board concurs with the determination that an extraschedular rating is not warranted in this case.   The Board finds that the Veteran’s disability picture was not so unusual or exceptional in nature as to render the current rating inadequate. The Veteran’s prostate cancer is evaluated pursuant to 38 C.F.R. § 4.115a, Diagnostic Code 7528, the criteria of which is found by the Board to specifically contemplate the level of disability and symptoms. The evidence shows that as of February 1, 2007, a 60 percent evaluation was warranted as the Veteran reported that he had to change absorbent pads 3 to 5 times per day. 38 C.F.R. § 4.115a. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran’s symptoms are adequately contemplated by the rating assigned for his prostate cancer treatment residuals during this period of time. Because there was no local reoccurrence or metastasis, a 100 percent evaluation is not for application. 38 C.F.R. § 4.115b, Diagnostic Code 7528. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson