Citation Nr: 18146688 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-04 662 DATE: November 1, 2018 ORDER The rating reduction for residuals of prostate cancer from 100 to 40 percent, effective October 1, 2012, was improper, and the 100 percent rating is restored. The rating reduction for residuals of prostate cancer from 100 to 40 percent, effective December 31, 2013, was proper, and, to this extent, the appeal is denied. FINDINGS OF FACT 1. In a July 2012 rating decision, the RO reduced the disability rating for prostate cancer from 100 to 40 percent, effective October 1, 2012. 2. In a January 2015 rating decision, the RO increased the disability rating for prostate cancer to 100 percent, effective December 26, 2012, and reduced the rating to 40 percent from January 1, 2014. 3. It is unclear whether the Veteran’s prostate cancer improved by October 1, 2012. 4. The RO’s January 2015 decision to reduce the rating for prostate cancer from 100 to 40 percent 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. 5. Since January 1, 2014, the Veteran’s prostate cancer has not reoccurred and there has been no metastasis; the residuals of prostate cancer have manifested predominantly by urinary frequency with daytime voiding intervals less than one hour and awakening to void five or more times per night. CONCLUSIONS OF LAW 1. The reduction of the rating for prostate cancer from 100 to 40 percent, effective October 1, 2012, was improper, and a 100 percent rating is restored effective October 1, 2012. 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). 2. The reduction of the rating for prostate cancer from 100 to 40 percent, effective January 1, 2014, 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 from May 1959 to January 1960 and from January 1963 to April 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which reduced the Veteran’s rating for prostate cancer from 100 to 40 percent, effective October 1, 2012. During the pendency of the appeal, the Veteran’s prostate cancer reoccurred and in a January 2015 rating decision, the RO assigned a 100 percent rating from December 26, 2012, to December 31, 2013, and a 40 percent rating thereafter. In his February 2015 substantive appeal, the Veteran limited the scope of his appeal to the amount of disability compensation benefits withheld due to the receipt of retirement pay. As the Board cannot take original jurisdiction of this claim, it is referred to the RO for appropriate action. 1. Prostate Cancer Residuals 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). If there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Historically, the Veteran was diagnosed with prostate cancer in 2010 and underwent radical prostatectomy in July 2010. See VA exam. (October 2011). In an October 2010 rating decision, the RO granted service connection for prostate cancer and assigned an initial 100 percent rating. In a November 2011 rating decision, the RO proposed to reduce the Veteran’s prostate cancer rating to 40 percent. In a July 2012 rating decision, the RO reduced the Veteran’s prostate cancer rating from 100 to 40 percent, effective October 1, 2012. The Veteran disagreed with the reduction on the basis that his prostate cancer reoccurred. See, e.g., NOD (April 2013). Indeed, private treatment records show elevated PSA levels in December 2012 and radiation treatment in April 2013 and May 2013. In December 2014, a VA examiner found that the Veteran’s prostate cancer had not reoccurred since his most recent May 2013 radiation treatment. The examiner further reported that the residuals of prostate cancer have manifested predominantly by urinary frequency with daytime voiding intervals less than one hour and awakening to void five or more times per night. In a January 2015 rating decision, the RO assigned a 100 percent rating for prostate cancer from December 26, 2012, to December 31, 2013, and a 40 percent rating thereafter. First, the Board finds that it is unclear whether the Veteran’s prostate cancer did not improve by October 1, 2012. In this regard, while diagnostic testing conducted on December 26, 2012, shows the recurrence of prostate cancer, the evidence does not sufficiently establish that the prostate cancer did not begin to recur between October 1, 2012, that is, the effective date of the reduction from 100 to 40 percent, and December 26, 2012. Given the inconclusive evidence regarding the precise date of prostate cancer recurrence and the short time period between October 1, 2012, and December 26, 2012, the Board resolves any doubt in the Veteran’s favor and finds that the Veteran’s prostate cancer did not improve by October 1, 2012. Accordingly, the reduction of the rating for prostate cancer from 100 to 40 percent, effective October 1, 2012, was improper, and a 100 percent rating is restored. Second, the RO’s January 2015 decision to reduce the Veteran’s rating for prostate cancer from 100 to 40 percent, effective January 1, 2014, 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. In this regard, the December 2014 VA examination was performed six months after the Veteran’s final prostate cancer treatment in May 2013. Additionally, the December 2014 VA examination affirmatively shows that the Veteran’s prostate cancer had not reoccurred. Critically, neither subsequent medical evidence nor the Veteran indicates that his prostate cancer has recurred since January 1, 2014. Finally, the December 2014 VA examination report shows that residuals of prostate cancer had manifested predominantly by urinary frequency with daytime voiding intervals less than one hour and awakening to void five or more times per night, which warrant a 40 percent rating. The Veteran does not dispute the findings of the December 2014 VA examination report or assert that separate or higher ratings for prostate cancer residuals are warranted. Accordingly, absent any lay or medical evidence of renal dysfunction or voiding dysfunction requiring absorbent materials that must be changed four or more times daily, a rating in excess of 40 percent for prostate cancer residuals is not warranted. In sum, the reduction of the disability rating for prostate cancer from 100 to 40 percent, effective December 31, 2013, was proper. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel