Citation Nr: 18150987 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-22 944 DATE: November 19, 2018 ORDER The reduction from 100 percent to 60 percent disabling for residuals, prostate cancer, status-post radical retropubic prostatectomy, effective November 1, 2012, was proper. Entitlement to an increased rating higher than 60 percent disabling for residuals, prostate cancer, status-post radical retropubic prostatectomy, from November 1, 2012, is denied. FINDINGS OF FACT 1. An April 2011 rating decision proposed a reduction of the disability rating assigned for residuals of prostate cancer from 100 percent to 60 percent. 2. An August 2012 rating decision effectuated the proposed reduction of the disability rating for residuals of prostate cancer from 100 percent to 60 percent, effective November 1, 2012. 3. The 100 percent disability rating for prostate cancer had been in effect for less than five years. 4. With respect to the assigned disability rating reduction from 100 to 60 percent on November 1, 2012, an adequate reexamination indicated an improvement in the severity of the Veteran’s service-connected prostate cancer, specifically that the Veteran’s prostate cancer had entered remission, was not undergoing any chemotherapy or radiation, and was manifested by voiding dysfunction requiring the change of absorbent materials up to six times per day. 5. During the entire appeal period, the Veteran’s prostate cancer residuals do not exhibit renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; nor is his prostate cancer active. CONCLUSIONS OF LAW 1. The RO complied with the procedural requirements under 38 C.F.R. § 3.105(e) for effectuating rating reductions. 38 C.F.R. § 3.105 (2018). 2. The reduction of the disability rating for the Veteran’s residuals of prostate cancer from 100 percent to 60 percent was proper, and the criteria for the restoration of a 100 percent disability rating for prostate cancer have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344 (2018). 3. The criteria for a rating higher than 60 percent for prostate cancer residuals are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7528 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Reduction In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). The provisions of 38 C.F.R. § 3.344(a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. Whether the rating reduction from 100 percent to 60 percent disabling for prostate cancer residuals, effective November 1, 2012, was proper. Initially, the Board notes that VA regulations provide for specific notice requirements in instances where a reduction in disability rating is considered. 38 C.F.R. § 3.105(e). When a rating reduction is considered and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran’s address of record. 38 C.F.R. § 3.105(e). This proposed rating should set forth all the material facts and reasons for the proposed reduction. Id. The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. Id. In this case, a May 2011 letter provided the Veteran with appropriate notice of a proposed reduction of his residuals of prostate cancer rating from 100 percent to 60 percent. During the 60-day period, the Veteran did not submit any evidence in support of a continuance of his previous rating. In an August 2012 rating decision, the RO effectuated the proposed reduction, effective from November 1, 2012. The Veteran had been afforded a VA examination in March 2011, upon which the proposed reduction was based. Based upon these facts, the Board finds that the RO’s reduction of the Veteran’s prostate cancer rating was procedurally in accordance with the notice provisions under 38 C.F.R. § 3.105. The Veteran’s prostate cancer residuals were rated 100 percent disabling from November 9, 2009, to October 31, 2012. That rating was reduced to 60 percent disabling as of November 1, 2012. The 100 percent rating was in effect for less than five years. Therefore, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply, and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 4 Vet. App. 413 (1993) (the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. The Veteran’s prostate cancer is rated under DC 7528, which provides a 100 percent disability rating for malignant neoplasms of the genitourinary system (such as the Veteran’s prostate cancer). Subject to the same, the criteria provides that, following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination being performed every six months. Any change in the assigned disability rating based upon such examinations are to be made subject to the provisions of 38 C.F.R. § 3.105(e). The note following DC 7528 instructs that if there has been no local reoccurrence or metastasis, the disability is to be rated based upon residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. Under the criteria for voiding dysfunction, disability requiring the use of absorbent materials which must be changed less than twice a day warrants a 20 percent disability rating. A maximum schedular 60 percent disability rating is assigned for disabilities requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating. Renal dysfunction requiring regular dialysis or precluding 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, warrants a 100 percent rating. 38 C.F.R. § 4.115a. The April 2012 proposed reduction was based, in part, on a March 2011 VA examination. The examination noted that the Veteran underwent radical prostatectomy in 2010 and had resulting urinary incontinence, erectile dysfunction, and edema. There was excess day and night incontinence. There was no evidence of renal dysfunction. There was no indication of cancer, metastasis, or recurrence. The diagnosis was prostate cancer status-post radical retropubic prostatectomy (inactive) and erectile dysfunction. The reduction was based upon review of the entire history of the Veteran’s disability as evidenced by the VA examination reports. Here was an actual change in the disability as reflected by the examination reports because the Veteran’s prostate cancer was in remission. Further, the 2011 examiner reviewed the file, examined the Veteran, and considered his lay statements in concluding that his prostate cancer was in remission and his circumstances had improved. Finally, there is actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work inasmuch as he is no longer being treated for active cancer—with therapies, such as, chemotherapy and/or radiation. Given the March 2011 VA examination and contemporaneous VA treatment records, the Board concludes that an adequate examination was performed in March 2011 that showed improvement consistent with a reduction from 100 percent to 60 percent under the provisions of 38 C.F.R. § 3.344(c), under the criteria for voiding dysfunction. Review of subsequent medical evidence, including VA treatment records do not reveal the recurrence of prostate cancer such as to warrant a 100 percent evaluation under DC 7528, or an increased evaluation under the criteria for Renal Dysfunction, the only applicable criteria with a schedular evaluation higher than the currently assigned 60 percent. 38 C.F.R. § 4.115a. Under the circumstances, the Board concludes that the RO’s rating action to effectively reduce the Veteran’s disability rating for prostate cancer from 100 percent to 60 percent, effective November 1, 2012, was proper as his prostate cancer is in remission. Accordingly, this appeal is denied. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the appeal period, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to an increased rating higher than 60 percent disabling for residuals, prostate cancer, status post-radical retropubic prostatectomy, from November 1, 2012 The Veteran contends that his prostate cancer residuals warrant a higher rating. The Board will incorporate and reference applicable facts, laws, and regulations previously stated above. It further notes that the Veteran had a maximum 100 percent rating prior to November 1, 2012, and is currently in receipt of the highest rating allowed under schedular criteria for voiding dysfunction. A September 2014, December 2014 and March 2015 VA Chemistry Profiles indicate Creatine levels of .96mg, .84mg, and 1.44mg respectively. December 2014, March 2015, April 2015, July 2015, and October 2015 VA Chemistry Profiles indicate BUN levels of 14mg, 26mg, 1.18mg, 1.02mg, and .98mg, respectively. A December 2015 VA lab test indicates a Creatinine level of 48.69 L with an additional level of .79mg. A January 2016 VA lab test indicates a Creatinine level of 182.43 with a reference range of 60.00-200.00. An additional creatinine level noted during the same lab test was .85mg. In May 2016, the Veteran attended a Prostate Cancer DBQ examination. The examiner diagnosed prostate cancer (in remission), status-post radical retropubic prostatectomy. The Veteran had voiding dysfunction requiring absorbent materials that must be changed more than 4 times a day, daytime voiding interval between 1 and 2 hours, and nighttime awakening to void 2 times per night. Finally, the examiner noted that the Veteran did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. On his May 2016 Form 9, the Veteran indicated that he suffered from increased weak stream, increased waking to void, increased leakage, increased changing of pads, and bed wetting. Multiple VA treatment records indicate complaints and treatment for voiding for the Veteran. Based on the foregoing evidence of record, the Board finds that the Veteran prostate cancer residuals do not warrant a higher rating at any point during the appeal period. As noted above, the Veteran is already in receipt of the highest disability rating under voiding dysfunction, therefore he can only receive a higher 80 percent rating under renal dysfunction or if there was evidence that his prostate cancer was active. There is no indication in the record that the Veteran’s prostate cancer is active so he is not entitled to a 100 percent rating under DC 7528. Further, the record is silent for any indication of albuminuria, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; or creatinine levels 4 to 8 mg%, indicative of a higher 80 percent rating. Indeed, numerous lab test results indicate that the Veteran’s creatinine levels have remained relatively normal. The Board has considered the Veteran’s contentions in his substantive appeal, but these symptoms are fully contemplated by the Veteran’s maximum rating under his predominant disability of voiding dysfunction. (Continued on the next page)   In summary, the Board finds the preponderance of the evidence is against the grant of a rating higher than 60 percent for prostate cancer residuals. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application and the claim is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel