Citation Nr: 18150894 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 18-29 017 DATE: November 16, 2018 ORDER The reduction of the 100 percent disability rating to 40 percent for prostate cancer residuals, effective December 1, 2015, was proper; restoration of the 100 percent rating for prostate cancer residuals is denied. REMANDED Entitlement to a rating in excess of 40 percent for service-connected prostate cancer residuals is remanded. FINDINGS OF FACT 1. A September 2015 rating decision reduced the rating for service-connected prostate cancer residuals from 100 percent to 40 percent, effective December 1, 2015. 2. As of December 1, 2015, the 100 percent disability rating for prostate cancer residuals had been in effect for less than five years. 4. At the time of the rating reduction, prostate cancer was inactive with residual symptoms of voiding dysfunction, including urinary frequency that involved a daytime voiding interval of less than one hour and a nighttime awakening to void 5 or more times. CONCLUSION OF LAW The rating reduction for prostate cancer residuals was proper, and restoration of a 100 percent disability rating, effective from December 1, 2015, is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.115b, Hyphenated Diagnostic Code 7528-7527. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1969 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico. On his May 2018 substantive appeal to the Board (VA Form 9), the Veteran indicated that he wished to testify at a videoconference hearing before the Board. Subsequently, an August 2018 correspondence from the Veteran indicated that he wished to withdraw that hearing request. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e). During the appeal period, the RO found that a rating reduction was warranted for the Veteran’s service-connected prostate cancer residuals. In support of this determination, the RO provided supporting rationale that included an analysis of whether an increased rating for prostate cancer was warranted, and the Veteran repeatedly offered argument concerning the current severity of his prostate cancer residuals, including in his September 2015 notice of disagreement and May 2018 substantive appeal to the Board (VA Form 9). Therefore, in addition to the rating reduction issue on appeal, the issue of entitlement to an increased rating higher than 40 percent for prostate cancer residuals is also on appeal in this case. The increased rating claim is addressed in the Remand section below. The Board notes that, even with the reduction in the rating of his service-connected prostate cancer residuals, the Veteran is still currently in receipt of a 100 percent combined disability rating and special monthly compensation. The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Rating Reduction Criteria and Restoration Analysis for Residuals of Prostate Cancer In February 2015, the RO proposed to reduce the Veteran’s 100 percent rating for service-connected prostate cancer to 20 percent. VA examination in August 2015 revealed that the Veteran’s symptomatology and disability picture associated with his prostate cancer residuals most closely approximated the criteria of the 40 percent rating. The reduction from 100 percent to 40 percent was implemented in a September 2015 rating decision, effective December 1, 2015. Initially, the Board observes the RO procedurally complied with the procedural safeguards 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 will now consider the propriety of the rating reduction. At the time the reduction became effective on December 1, 2015, the 100 percent rating for prostate cancer had been continuously in effect for less than five years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable. A rating reduction is not proper unless the veteran’s disability shows actual improvement has occurred and that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). The question of whether a disability has improved involves consideration of the applicable rating criteria. Prior to the reduction, the Veteran’s prostate cancer was rated under the criteria found at 38 C.F.R § 4.115b, Diagnostic Code 7528. Under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system, a 100 percent rating is assigned for active malignancy. A note after this code provides that, 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 rating 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 to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. Id. In this case, the Board finds that improvement of the prostate cancer has been demonstrated, and improvement will be maintained under the ordinary conditions of life and work; therefore, the rating reduction was proper and the criteria for restoration of a 100 percent rating for prostate cancer, effective December 1, 2015, have not been met. At the time of the rating reduction, the evidence showed that the Veteran had undergone radiation therapy in 2013, that the treatment had been completed, and that the Veteran was in “watchful waiting status.” In fact, the August 2015 VA examiner specifically reported that the Veteran’s prostate cancer was in remission. Because prostate cancer was inactive with no local recurrence or metastasis, and voiding dysfunction was the predominant residual disability, the RO assigned a 40 percent schedular rating for prostate cancer residuals based on voiding dysfunction/urinary frequency under Hyphenated Diagnostic Code 7528-7527. See 38 U.S.C. § 4.115a, Diagnostic Code 7528, Note. Diagnostic Code 7528 provides the rating criteria for malignant neoplasms of the genitourinary system and specifically directs VA to rate prostate cancer residuals on the predominance of either renal dysfunction or voiding dysfunction. As reported during the August 2015 VA examination, the Veteran does not demonstrate any renal dysfunction, and has a predominance of voiding dysfunction; therefore, the prostate cancer residuals are appropriately rated under the pertinent rating criteria for voiding dysfunction. Moreover, Diagnostic Code 7527 provides the rating criteria for prostate gland injuries, infections, hypertrophy, or postoperative residuals and instructs VA to rate such residuals as voiding dysfunction or urinary tract infection, whichever is predominant. As reported during the August 2015 VA examination, the Veteran does not demonstrate any urinary tract infection, and has the predominance of voiding dysfunction; therefore, the criteria are once again appropriately rated under the pertinent rating criteria for voiding dysfunction. Lastly, voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. While the Veteran’s voiding dysfunction causes urinary leakage, the severity of that dysfunction does not require the wearing of absorbent material. Likewise, the Veteran’s voiding dysfunction does not require use of an appliance nor does it result in obstructed voiding. The Veteran’s voiding dysfunction causes increased urinary frequency; therefore, proper analysis of the current severity of the Veteran’s voiding dysfunction falls under the criteria used to evaluate urinary frequency. As found on August 2015 VA examination, the Veteran’s urinary frequency involves a daytime voiding interval of less than one hour and a nighttime awakening to void 5 or more times. This finding most closely approximates the criteria for a 40 percent rating under Hyphenated Diagnostic Code 7528-7527. The rating reduction in this case was procedural in nature and by operation of law. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (where the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code involved contained a temporal element for that 100 percent rating). For the foregoing reasons, the Board finds that the preponderance of the evidence demonstrates actual improvement of the prostate cancer so as to warrant a rating reduction from 100 percent to 40 percent effective from December 1, 2015; therefore, the reduction was proper, and restoration of the 100 percent rating is not warranted. 38 C.F.R. § 3.105(e). REASONS FOR REMAND A rating in excess of 40 percent for service-connected prostate cancer residuals. In his May 2018 substantive appeal to the Board, the Veteran asserted that his service-connected residuals of prostate cancer are “getting worse and the symptoms are increasing.” As this suggests a worsening of the Veteran’s residual prostate disability, the Board finds a remand for a new examination warranted to assess the current extent and severity of his prostate cancer residuals. See Snuffer v. Gober, 10 Vet. App. 400 (1997). This matter is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his claimed prostate cancer residuals. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional VA or private medical records in his possession. 2. After the development requested above has been completed, schedule the Veteran for a VA examination to assess the current severity of his service-connected residuals of prostate cancer. The Veteran’s electronic claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. The examiner must ascertain whether there has been a local reoccurrence or metastasis of the Veteran’s prostate cancer. If not, the examiner must fully describe residuals of this disability, to include, but not limited to, any associated kidney dysfunction, voiding dysfunction, and/or prostate condition. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner must provide rationale for that statement. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel