Citation Nr: 18150717 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-40 357 DATE: November 15, 2018 ORDER The evaluation for the Veteran’s prostate cancer was properly reduced from 100 percent to 10 percent, effective December 1, 2014. For the period beginning December 1, 2014, a rating in excess of 10 percent for prostate cancer is denied. FINDINGS OF FACT 1. At the time of the September 2014 rating decision, which reduced the Veteran’s rating for prostate cancer with residual voiding dysfunction from 100 percent to 10 percent, the Veteran had been in receipt of the 100 percent evaluation for less than five years; and the evidence available at the time of the decision demonstrated a sustained improvement in the Veteran’s prostate cancer with residual voiding dysfunction, in that there was no local reoccurrence or metastasis of the prostate cancer. 2. Beginning December 1, 2014, the evidence demonstrates that the Veteran’s prostate cancer is manifested primarily by voiding dysfunction causing daytime voiding interval between 2 and 3 hours. CONCLUSION OF LAW 1. The reduction of the rating for prostate cancer from 100 percent to 10 percent effective December 1, 2014, did not involve a due process violation, and was proper. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. Beginning December 1, 2014, the criteria for an evaluation in excess of 10 percent for prostate cancer with residual voiding dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision. Reduction of Rating This matter stems from July 2013 rating decision, which proposed to reduce the Veteran’s evaluation for prostate cancer with residual voiding dysfunction from 100 percent to 10 percent following the results of a June 2013VA examination. In a September 2014 rating decision, the RO reduced the Veteran’s evaluation for prostate cancer with residual voiding dysfunction to 10 percent, effective December 1, 2014. The Veteran disagreed with the reduction and requested a higher evaluation. At the time of the September 2014 reduction, the 100 percent evaluation for the Veteran’s prostate cancer with residual voiding dysfunction had been in effect from September 19, 2012, to November 30, 2014. Thus, as the rating for prostate cancer with residual voiding dysfunction had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a), (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case. Nevertheless, in any rating-reduction case, regardless of whether the evaluation has been in effect for five years or more, certain general regulations need to be considered. Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; 38 C.F.R. § 3.344 (c) (authorizing reduction of a rating in effect for less than five years on the basis of examination disclosing improvement). A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). During the relevant appeal period, the Veteran’s prostate cancer has been currently evaluated as 100 percent disabling, effective September 19, 2012, and 10 percent disabling, effective December 1, 2014, under 38 C.F.R. § 4.115b, DC 7528 for malignant neoplasms of the genitourinary system. Under Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 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, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under 38 C.F.R. § 4.115a, voiding dysfunction is rated with regard to urine leakage, frequency, or obstructive voiding. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the need to wear absorbent materials which must be changed two to four times per day warrants a 40 percent rating. The use of an appliance or wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent rating. Urinary frequency with a daytime voiding interval of less than one hour or awakening to void five or more times per night warrants a 40 percent rating. Obstructive voiding and urinary tract infections do not provide for ratings higher than 30 percent. 60 percent is the highest disability rating available for any form of voiding dysfunction. Higher disability ratings of 80 and 100 percent are, however, available in cases involving renal dysfunction. 38 C.F.R. § 4.115a. A schedular 100 percent rating will not be reduced without examination showing material improvement. 38 C.F.R. § 3.343 (a). In this case, the June 2013 VA examination showed that the Veteran’s prostate cancer was in remission and that there were only urinary residuals of the disease and its treatment. There was no evidence presented that the Veteran’s prostate cancer had become active any time after the June 2013 VA examination where the Veteran’s prostate cancer was found to be in remission, and no longer warranting a 100 percent disability rating. Thus, under Diagnostic Code 7528, the Veteran’s disability was now to be rated under residuals as voiding dysfunction or renal dysfunction, whichever is predominant. As such, there was a legitimate basis for reducing the evaluation, effective from December 1, 2014. Now, the Board must consider whether the Veteran’s prostate cancer warrants a higher than 10 percent evaluation for the period as of December 1, 2014. As discussed above, the Veteran’s residuals of prostate cancer should be rated either as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.114b, Diagnostic Code 7528. In this case, there is no evidence of renal dysfunction, so the Veteran’s residuals are most appropriately rated under voiding dysfunction. The Veteran currently receives a 10 percent evaluation based on the findings in the June 2013 VA examination report. At that examination, the VA examiner found that the Veteran’s prostate cancer was currently in remission and the residuals of his prostate cancer were voiding dysfunction, which caused urinary leakage, but did not require the wearing of absorbent material. His voiding dysfunction did require daytime voiding between 2 and 3 hours. He was not required to use an appliance. There were no signs or symptoms of obstructed voiding. He did not have a history of symptomatic urinary tract or kidney infections. He did have erectile dysfunction which was noted to cause retrograde ejaculation. He was not able to achieve an erection sufficient for penetration and ejaculation without medication. No other residuals were found due to the Veteran’s prostate cancer or prostate cancer treatment. In October 2014, the Veteran submitted a private medical report which indicated that the Veteran underwent a radical prostatectomy and, at that point, had been cured from his prostate cancer. The report also stated that the Veteran had voiding trouble with straining and nocturia. The report also stated that the Veteran had a bladder neck contracture, which was scar tissue form the surgery. In a December 2015 statement, the Veteran indicated he was taking medication for bladder control. He concurrently submitted additional reports from his private treating physician which noted the Veteran suffered from significant urinary incontinence requiring medication and adaptations to his lifestyle. The reports also indicated that the Veteran had erectile dysfunction which required treatment. The reports again indicated the Veteran had trouble with straining and nocturia as well as a bladder neck contracture, which was scar tissue form the surgery. Based on a careful review of the subjective and clinical evidence, the Board finds that as of December 1, 2014, the preponderance of the evidence weighs against finding that a rating in excess of 10 percent for prostate cancer with residual voiding dysfunction is warranted. On that basis, the Veteran is currently evaluated for his symptoms of urinary frequency, and is already in receipt of the highest available evaluation for rating urinary frequency. The evidence of record in this case does not indicate that the Veteran was experiencing any specific symptomology such as urinary leakage, diversion, or incontinence requiring the wearing of absorbent materials, which would warrant and support a rating in excess of 10 percent. The June 2013 VA examination report confirms that the Veteran did not wear absorbent material, and no evidence of record contradicts this. Specifically, the Veteran’s statements and those of his treating physician do not indicate that the use of absorbent materials was required for the treatment of the Veteran’s urinary frequency. Likewise, no evidence of record indicated that the Veteran was experiencing urinary retention requiring intermittent or continuous catheterization or that the Veteran was experiencing urinary tract infections. Thus, there is no evidence currently of record which warrants a rating in excess of 10 percent. The Board does acknowledge that the Veteran’s treating physician indicated that the Veteran had a significant urinary incontinence which required medication and caused lifestyle change, as well as had straining and nocturia and a bladder neck contracture. While the Board finds these reports credible and probative, the information contained in the private physician reports does not provide any basis for a rating in excess of the assigned 10 percent. The physician does not elaborate on what “significant” urinary incontinence means in terms of urinary frequency or the use of absorbent materials, which is the criteria used to rate the Veteran’s urinary dysfunction. Further, though the private physician indicated the Veteran had some symptoms of obstructed voiding, there was no information provided which would establish that the Veteran had urinary retention, catheterization, post void residuals, a diminished flow rate, or recurrent urinary tract infections, any of which is necessary to provide a basis for a rating in excess of the assigned 10 percent. Furthermore, the Veteran’s VA medical center records do not indicate that any of the aforementioned symptomology was noted, addressed, or discussed at any time. There is also no indication in the VA medical center records that the Veteran used absorbent materials. Rather, the totality of the evidence supports the RO’s determination, based on the June 2013 VA examination, that the Veteran’s prostate cancer residuals were predominantly manifested by urinary frequency with a daytime voiding interval between 2 and 3 hours, or awakening to void two times per night. This level of impairment was appropriately determined to meet the criteria for a 10 percent rating. The Board finds that the RO’s rating properly assigned a 10 percent rating on this basis, and a greater level of impairment from greater urinary frequency has not been shown by the record. 38 C.F.R. § 4.115a Considering the above, the Board finds that the reduction in the rating for the Veteran’s prostate cancer was factually warranted and in accordance with governing law, and restoration of the 100 percent rating is not warranted. Furthermore, the claims file does not contain competent and credible evidence that as of December 1, 2014, the Veteran’s prostate cancer residuals warrant a rating in excess of 10 percent. Accordingly, as the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel