Citation Nr: 18149306 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-20 262 DATE: November 9, 2018 ORDER Restoration of a 100 percent rating for prostate cancer residuals, to include the assignment of a rating in excess of 20 percent from July 1, 2014, is denied. FINDINGS OF FACT 1. The reduction of the disability rating of 100 percent for prostate cancer to 20 percent for prostate cancer residuals, effective July 1, 2014, was proper and consistent with applicable law and regulations. 2. The Veteran’s prostate cancer residuals are not more nearly manifested by daytime voiding interval of less than one hour or awaking to void five or more times a night, or the wearing and changing of absorbent materials which must be changed two to four times a day. CONCLUSIONS OF LAW 1. The criteria for restoration of a 100 percent rating for prostate cancer residuals, to include the assignment of a rating in excess of 20 percent from July 1, 2014, are not been met. 38 U.S.C. § 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.71a, 4.115(a) Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1967 to November 1969. Entitlement to restoration of a 100 percent rating for prostate cancer residuals, to include the assignment of a rating in excess of 20 percent from July 1, 2014. The Veteran asserts that the reduction of his prostate cancer disability benefits from 100 percent to 20 percent was improper. The Board concludes that the preponderance of the evidence is against restoration of a 100 percent rating for prostate cancer residuals, to include the assignment of a rating in excess of 20 percent from July 1, 2014. 38 U.S.C. § 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.71a, 4.115(a), DC 7528. The reduction of the disability rating of 100 percent for prostate cancer to 20 percent for prostate cancer residuals, effective July 1, 2014, was proper and consistent with applicable law and regulations governing the reduction of disability rating. Also, the Veteran’s prostate cancer residuals are not more nearly manifested by daytime voiding interval of less than one hour or awaking to void five or more times a night, or the wearing and changing of absorbent materials which must be changed two to four times a day. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on average impairment of earning capacity as a result of a service connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, the Veteran was initially granted service connection for his prostate cancer, from December 6, 1997 through September 1, 2000, and evaluated as 100 percent disabling. Thereafter, it was evaluated as 40 percent disabling based on his prostate cancer residuals, pursuant to 38 C.F.R. § 4.115b, DC 7528. The Veteran then experienced a second occurrence of prostate cancer. It was evaluated as 100 percent disabling from October 3, 2008 through July 1, 2014. It is the second occurrence of the Veteran’s prostate cancer to which this appeal pertains. See claim, December 2008. The burden of proof is on VA to justify a reduction in rating. See Brown v. Brown, 5 Vet. App. 413 (1993). When reviewing a rating reduction for adequacy the Board must inquire “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Id. at 421. Additionally, ordinarily, where, as here, a total rating has been reduced, reexamination must demonstrate material improvement. 38 C.F.R. § 3.343(a) (2017). Such demonstrated material improvement must be evaluated in conjunction with all the facts of record. Id. Particular consideration must be given to whether the Veteran has actually attained improvement of his condition under the ordinary conditions of life and work. See id. However, in this case, under the Diagnostic Code 7528, the 100 percent rating initially awarded was not designed or intended to be a permanent reflection of the Veteran’s disability picture. DC 7528 affords a single temporary 100 percent evaluation and contains no listed symptoms or conditions for that rating, and no lower percent evaluations that can be assigned. 38 C.F.R. § 4.115(b). It is awarded only if a condition is in active malignancy while a Veteran is undergoing therapeutic treatment. See id. DC 7528. This is demonstrated by the only Note to DC 7528 which states: “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.” Id. Any change in evaluation based upon that or any subsequent examination are subject to the provisions of 38 C.F.R. § 3.105(e). Id. Moreover, if, upon examination, 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.” Id. As such, given that the Veteran’s 100 percent rating for prostate cancer is temporary by definition, no finding of material improvement under the ordinary conditions or life and work is required. Under DC 7528, malignant neoplasms of the genitourinary system (i.e., prostate cancer) is assigned a 100 percent evaluation. However, the Note following DC 7528 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, DC 7528, Note (2017). Voiding dysfunction, in turn, may be rated as “urine leakage, frequency, or obstructed voiding.” 38 C.F.R. § 4.115a (2017). Here, renal dysfunction has not been shown by the evidence; therefore, voiding dysfunction is the predominant disability. Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. For evaluations based on urine leakage, due to continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 60 percent rating is warranted 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. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. 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. 38 C.F.R. § 4.115b, DC 7528 (2017). For evaluations based on urinary frequency, a 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five or more times per night. Daytime urinary frequency intervals between one and two hours or nocturia three or four times a night warrants a 20 percent rating. A 10 percent evaluation is warranted for daytime voiding interval between two and three hours, or; awakening to void two times per night. Id. From a procedural standpoint, the reduction of the rating for prostate cancer from 100 percent to zero percent effective July 1, 2014 was proper. See 38 C.F.R. § 3.105 (e) (2017). A January 2014 rating decision notified the Veteran of the proposed reduction. See rating decision, January 2014. The Veteran was notified in a letter that month and he was provided a copy of the rating decision which provided a detailed explanation about the RO’s proposed action. The RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced. The RO also gave the Veteran 30 days to request a predetermination hearing. See Notification Letter, January 21, 2014. The RO took final action to reduce the disability rating in an April 2014 rating decision. See rating decision, April 2014. The RO informed the Veteran of this decision by letter in May 2014. See Notification Letter, May 15, 2014. The reduction was not made prior to 60 days from the notification of the denial. The notice and procedural protections of 3.105(e) were clearly met. The next question is whether the reduction was proper on a factual basis. The initial 100 percent rating for the Veteran’s prostate cancer was assigned effective December 9, 1997 without VA examination on the basis of herbicide presumption due to the Veteran having served in the Republic of Vietnam from April 1968 to July 1968, along with July 1997 private treatment records diagnosing the Veteran with prostate cancer by biopsy. See rating decision, February 6, 1998; private treatment records from Dr. Amberson, July 1997. The RO assigned the Veteran a rating under DC 7528, for malignant neoplasms of the genitourinary system. The Veteran had seed implant therapy in November 1997. See VA examination, March 1998. The seed implant therapy lasted for a year. See rating decision, July 1999. The Veteran underwent a VA examination in August 1999, and his prostate cancer was deemed to be in remission. See VA examination, August 1999. His rating was reduced to 40 percent based on prostate cancer residuals, effective September 1, 2000. See rating decision, June 2000. Private treatment records showed no evidence of prostate cancer recurrence. See private treatment records, Rockland Urology Associates, July 12, 2007. The Veteran underwent a VA examination in April 2008. See VA examination, April 2008. The examiner stated that the Veteran’s prostate cancer was in remission after 1997 seed implantation. The examiner noted that the Veteran experienced chronic prostatitis with occasional double voiding, and aggravation of his pre-existing erectile dysfunction. There was no renal dysfunction present. The Veteran experienced a recurrence of the prostate cancer in December 2008. In January 2009, he underwent salvage cryosurgical ablation of the prostate. See private treatment records, Dr. Katz, January 20, 2009. The Veteran underwent a VA examination in May 2009. See VA examination, May 2009. The examiner diagnosed the Veteran with prostate carcinoma, active disease, manifested as local recurrence which required cryotherapy in January 2009. The 40 percent rating was increased to a 100 percent rating for the Veteran’s prostate cancer effective October 3, 2008 based on the medical records submitted. See rating decision, May 2009. The RO once again assigned the Veteran a 100 percent rating under DC 7528, for malignant neoplasms of the genitourinary system. In September 2011, VA continued the Veteran’s rating of 100 percent based on a July 12, 2011, examination, which showed abnormal findings. See September 2011 VA rating decision (“Physical examination was reviewed and considered. Prostate exam noted abnormal findings. Multiple nodules were noted/remand and you are being monitored by urologist.”). See VA examination, July 2011. Thereafter, the rating was changed to 20 percent based on his prostate cancer residuals, pursuant to 38 C.F.R. § 4.115b, DC 7528. At a VA examination in January 2014, the examiner indicated that the Veteran’s prostate cancer continued to be in remission. See VA examination, January 2014. The examiner noted that the Veteran underwent cryotherapy in 2008, and the treatment was completed in 2008. While the Veteran had voiding dysfunction causing urine leakage, the examiner specifically noted that the Veteran used absorbent material when a bathroom facility was not readily available, and that he used absorbent material (underpad) on an average once a week. The Veteran reported daytime voiding intervals one and two hours, and had nighttime awaking to void two times per night. There was a slow or weak stream (not markedly s0) and decreased force of stream (again, not markedly so). The examiner indicated that the Veteran did not have a history of recurrent symptomatic urinary tract infections. The examiner stated that the Veteran experienced ED which was not related to his prostate cancer residuals. No other residual conditions and/or complications were noted. Private treatment records show that the Veteran experienced prostate cancer residuals and ED, with the ED being related to the cancer residuals. See private treatment records, March 10, 2014; August 14, 2017. Upon review of the medical evidence of record, the Board finds that the Veteran’s prostate cancer residuals symptoms most closely approximate the criteria for a 20 percent rating, and a higher rating is not warranted. The January 2014 VA examination was adequate, as it addressed all the diagnostic criteria and the symptoms experienced by the Veteran. The examination addressed the fact that the Veteran did not experience a local recurrence of the prostate cancer, and did not experience metastasis. Under voiding dysfunction, there is nothing in the record to suggest that the Veteran requires the wearing of absorbent materials which must be changed more than 2 times per day or the use of an appliance to treat urine leakage, which is a requirement for a 40 percent rating. Thus, a disability rating in excess of 20 percent based on voiding dysfunction is not shown. Under urinary frequency, 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, the requirements of a 40 percent rating. Thus, a disability rating in excess of 20 percent for urinary frequency is not shown. Under obstructive voiding, the record does not show that the Veteran requires intermittent or continuous catheterization, which is the requirement of a 30 percent rating. The Board recognizes that the Veteran argues that his ED should be considered as part and parcel of the prostate cancer residuals rating. His doctor has stated that the Veteran’s ED was related to his prostate cancer. See private treatment records, March 10, 2014; August 14, 2017. The Board notes that the Veteran’s ED is rated separately from his residuals of prostate cancer. He is already service-connected for ED with a current noncompensable rating under DC 7522, and he receives special monthly compensation (SMC) (k) for loss of use of a creative organ. Neither one of those ratings is currently on appeal before the Board. (Continued on the next page)   As described above, the reduction from 100 percent to 20 percent was proper, as the Veteran’s prostate was in remission and his cancer therapy ended in 2008. In addition, the criteria for a schedular rating in excess of 20 percent for residuals of prostate cancer have not been met. As such, the Veteran’s claim is denied. There is no reasonable doubt to resolve in this matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel