Citation Nr: 18150863 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-08 873 DATE: November 15, 2018 ORDER The reduction in rating for the Veteran’s prostate cancer from 100 percent to 40 percent, effective March 1, 2011, was proper. Entitlement to a restoration of the 100 percent rating is denied. FINDINGS OF FACT 1. A February 2010 rating decision proposed to reduce the Veteran’s rating for prostate cancer from 100 percent to 40 percent. 2. The proposed reduction was implemented in a December 2010 rating decision, and made effective March 1, 2011. 3. Since March 1, 2011 the Veteran’s prostate cancer residuals have been characterized by voiding 15 times per day and awakening to void three to four times per night. CONCLUSION OF LAW The reduction of the 100 percent disability evaluation for the Veteran’s prostate cancer to 40 percent, effective March 1, 2011, was proper. The criteria for restoration of the 100 percent rating have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), that reduced the Veteran’s rating for prostate cancer from 100 percent to 40 percent, effective March 1, 2011. 1. The reduction in rating for the Veteran's prostate cancer from 100 percent to 40 percent, effective March 1, 2011, was proper 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. Under 38 C.F.R. § 4.115a, the criteria for rating renal dysfunction provides that a 100 percent rating is warranted where the Veteran requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted where there is persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent rating is warranted where there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. A 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. The criteria for rating voiding dysfunction requires the condition to be rated as urine leakage, frequency, or obstructed voiding. With regard to urine leakage, the regulation provides that requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a rating of 60 percent; requiring the wearing of absorbent materials which must be changed 2 to 4 times per day warrants a rating of 40 percent; and requiring the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent rating. See 38 C.F.R. § 4.115b. With regard to urinary frequency, a 40 percent rating is warranted where the daytime voiding interval is less than one hour, or the Veteran awakens to void five or more times per night. Daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent evaluation. In regard to obstructed voiding, urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Id. 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, DC 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer. The United States Court of Appeals for Veterans Claims (CAVC) has held that, where, as with prostate cancer, a diagnostic code 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. See Rossiello v. Principi, 3 Vet. App. 430 (1992). 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 proper by operation of law under DC 7528. The Board finds that the RO 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. The Board finds a 40 percent rating, and no higher, is appropriate for the Veteran’s residuals of prostate cancer. The Veteran underwent 5 weeks of radiation and in April 2008 underwent prostate brachytherapy. The December 2009 VA examination showed that the Veteran’s prostate cancer was in remission. The examiner noted voiding hesitancy and urgency, noting that the Veteran has wet himself, requiring him to change his clothes once or twice a month, but he does not wear absorbent material or the use of an appliance. The examiner also noted daytime voiding frequency approximately 15 times per day and nighttime awakening to void three to four times. Private treatment records show that the Veteran underwent a brachytherapy in April 2008 and continues to take Flomax and Celebrex to manage long-term bladder side effects. A March 2010 private treatment record shows that the Veteran underwent urethral catheter insertion to correct scarring inside the urethra in July 2009. It was noted that the procedure was repeated in March 2010. The private physician noted that if left untreated, the post-radiation scarring could develop into a stricture. A November 2010 VA examination noted that the Veteran has had catheter use for scarring of the urethra secondary to pelvic radiation for treatment of prostate cancer. The examiner noted and agreed with the March 2010 physician’s opinion that if left untreated the scarring could result to a complete urethral stricture. There is no evidence that there has been local reoccurrence or metastasis of the Veteran’s prostate cancer since his brachytherapy in April 2008. Further, a rating in excess of 40 percent is not warranted as there is no evidence of renal dysfunction, or voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials. See 38 C.F.R. § 4.115b. For the reasons set forth above, the Board finds that the reduction in rating for the Veteran’s prostate cancer from 100 percent to 40 percent effective March 1, 2011 was proper. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Brandt