Citation Nr: 18151058 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-11 178A DATE: November 16, 2018 ORDER The reduction of the 100 percent rating to 60 percent for prostate cancer status-post prostatectomy, effective January 1, 2013 was proper; restoration of the 100 percent rating for prostate cancer is denied. Continued entitlement to special monthly compensation at the housebound rate is denied. Entitlement to service connection depressive disorder is granted. FINDINGS OF FACT 1. The Veteran was awarded service connection for prostate cancer and a 100 percent rating was assigned, effective February 24, 2009. 2. The Veteran’s prostate cancer status-post prostatectomy was subsequently reduced to a 60 percent rating, effective January 1, 2013. 3. From January 1, 2013, the Veteran’s prostate cancer residuals have been characterized by awakening to void three to four times per night. 4. The Veteran is no longer in receipt of a 100 percent rating due to prostate cancer status-post prostatectomy, nor does he have additional service-connected disability or disabilities independently ratable at 60 percent, or is he confined to his home or its immediate premises by reason of his service-connected disabilities. 5. Resolving reasonable doubt in the Veteran’s favor, his depressive disorder is at least as likely as not related to a service connected prostate cancer status-post prostatectomy. CONCLUSIONS OF LAW 1. The reduction of the 100 percent rating for the Veteran’s prostate cancer status-post prostatectomy to 60 percent effective January 1, 2013 was proper. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.105, 3.344(c), 4.115b, Diagnostic Code 7528 (2017). 2. The criteria for entitlement to special monthly compensation at the housebound rate are not met since January 1, 2013. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352(a) (2017). 3. The criteria for establishing entitlement to service connection for depressive disorder secondary to service connected prostate cancer status-post prostatectomy have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1965 to July 1965, from September 1965 to August 1967, from August 1967 to July 1973, from August 1973 to May 1976, and from May 1976 to September 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in July 2012 (SMC and prostate cancer) and March 2013 (depression) by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran’s attorney submitted additional evidence and argument in support of his appeals. This evidence was accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20. 1304(c) (2017). Therefore, the Board may properly consider such evidence. The issue of entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) has been raised by the Veteran’s attorney in an April 2017 submission but has not been addressed by the AOJ. The Veteran is advised that for claims raised after March 24, 2015, a claim for benefits must be submitted on the application form prescribed by the VA Secretary. 38 C.F.R. §§ 3.1 (p), 3.155, 3.160 (2017). In this case, an August 2009 rating decision granted service connection for prostate cancer, effective February 24, 2009 and assigned a 100 percent rating. A July 2012 rating decision proposed to reduce the rating to 60 percent and the October 2012 rating decision effectuated that reduction, effective January 1, 2013. Diagnostic Code 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. § 4.115 (b), Diagnostic Code 7528. Under 38 C.F.R. § 4.115(a), 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. § 4.115(b). 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, Diagnostic Code 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 rating 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 Diagnostic Code 7528. With respect to disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). 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. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Propriety of reduction of prostate cancer status-post prostatectomy The Veteran asserts that the reduction of his prostate cancer rating was improper to the extent that he should receive higher compensation. Historically, the Veteran was diagnosed with prostate cancer in 2005 and underwent radical prostatectomy. In this case, an August 2009 rating decision granted service connection for prostate cancer, effective February 24, 2009 and assigned a 100 percent rating. The Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. Under this code, a 100 percent rating is warranted for malignant neoplasms, and, 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 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, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. As detailed above, the Veteran’s prostate cancer residuals resulted predominantly, if not exclusively, in a voiding dysfunction. There is no evidence of kidney dysfunction. The Board finds that a 60 percent rating is warranted on the basis of voiding dysfunction. The Veteran underwent a VA examination in March 2012. The examiner noted that the Veteran was not receiving anti-cancer therapy and that he was in remission. The prostate cancer residuals were manifested by residual urine leakage requiring use of an appliance or absorbent materials to be changed more than four times per day, which is the criteria needed for a 60 percent rating. From March 2012, the prostate cancer residuals were manifested by urine frequency requiring nighttime awakening to void three to four times. In addition, the prostate cancer residuals were manifested by urinary frequency requiring a daytime voiding interval of less than one hour and nighttime awakening to void three to four times. The Veteran does not have voiding dysfunction requiring the use of an appliance. In this regard, the disability picture during the rating period is consistent with the 60 percent schedular rating criteria under Diagnostic Code 7528. For these reasons, the Board finds that a disability rating higher than 60 percent for prostate cancer under Diagnostic Code 7528 is not warranted for any portion of this period. The Board finds that the reduction of the Veteran’s 100 percent rating to 60 percent disabling, for prostate cancer status-post prostatectomy effective January 1, 2013 was proper. First, the RO complied with the procedures set forth in 38 C.F.R. § 3.105(e) and notified the Veteran of the proposed rating reduction, as well as his rights in challenging this proposed reduction, in a rating decision in July 2012 and a letter dated in July 2012. The reduction was then effectuated in an October 2012 rating decision, effective January 1, 2013. Thus, the notice requirements for a reduction of a rating have been met. Second, the RO afforded the Veteran a VA examination in March 2012, which was more than six months after discontinuance of the prostatectomy, and thus, in accordance with the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528. Accordingly, absent any lay or medical evidence of voiding dysfunction requiring absorbent materials that must be changed four or more times daily, a rating in excess of 60 percent for prostate cancer residuals is not warranted. In sum, the reduction of the disability rating for prostate cancer from 100 to 60 percent, effective January 1, 2013, was proper. The Board notes there is evidence of erectile dysfunction that is a residual of the prostate cancer and treatment. Erectile dysfunction has already been evaluated under its own diagnostic code. The Veteran has been in receipt of special monthly compensation based upon the loss of use of his creative organ (i.e., his erectile dysfunction). See 38 U.S.C. § 1114(k). Thus, it is not necessary to further discuss this residual. The Board finds that no other residuals or symptoms in the record appear related to his prostate cancer, nor is there evidence that the Veteran should be rated for any additional disabilities or under a different diagnostic code to cover any service related symptomology not otherwise covered by Diagnostic Code 7528. Continued entitlement to Special Monthly Compensation at the housebound rate. The Veteran contends that the severity of his service-connected disabilities warrants continued entitlement to special monthly compensation at the housebound rate. Special monthly compensation is a monetary benefit that is paid for service-connected disabilities that render the veteran housebound or in need of the regular aid and attendance of another person. 38 U.S.C. § 1114. Special monthly compensation is payable at the housebound rate where the veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For the period effective February 24, 2009, the Veteran was service-connected for prostate cancer, evaluated as 100 percent disabling; tinea pedis with xerosis of legs and groin area, evaluated as 60 percent disabling; callous left foot, evaluated as 10 percent disabling; and cyst left forearm with multiple cyst anterior chest and abdomen, evaluated as noncompensably disabling. As noted above, the Veteran was awarded a 100 percent rating for prostate cancer as of February 24, 2009, and correspondingly special monthly compensation based on housebound criteria being met pursuant to 38 U.S.C. § 1114(i). In determining entitlement to special monthly compensation, only the Veteran’s service-connected disabilities may be considered. In this regard, the current evidence of record does not show any evidence of other cancers. According to the March 2012 VA examination, the examiner indicated that the prostate cancer was in remission. The laboratory reports revealed a prostate specific antigen of less than 0.1. Rather, the evidence shows that the prostate cancer residuals were manifested by residual urine leakage requiring use of an appliance or absorbent materials to be changed more than four times per day. This determination resulted in a reduction from 100 percent disabling to 60 percent disabling regarding the Veteran’s service-connected prostate cancer status-post prostatectomy. The reduction was effective January 1, 2013. Consequently, the Veteran no longer has a single service-connected disability rated as 100 percent in addition to a service-connected disability or disabilities independently ratable at 60 percent that separate and distinct from the 100 percent service-connected disability. Rather, his additional service-connected disabilities result in a combined rating of 60 percent. Further, the clinical evidence of record does not establish, and the Veteran has not alleged, that he is housebound as a result of his service-connected conditions. As such, effective January 1, 2013, the Veteran no longer met the schedular requirements necessary to establish entitlement to SMC at the housebound rate because he no longer had a service-connected disability rated as 100 percent disabling. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the Veteran’s claim regarding SMC. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection depressive disorder. The Veteran generally contends that his depressive disorder is due to his service-connected prostate cancer status-post prostatectomy. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A November 2016 private opinion diagnosed the Veteran with depressive disorder due to another medical condition with depressed features. The private psychologist opined that the Veteran’s prostate cancer status-post prostatectomy and residuals are more likely than not causing his depressive disorder. The psychologist noted that there is a body of literature detailing the connection between medical issues such as what the Veteran struggles with and psychiatric difficulties and that individuals with medical issues and depressive disorder debilitation become disabled due to the holistic effects of medical and psychiatric disturbances. The Board acknowledges that further medical inquiry can be undertaken to develop this claim. However, the Court has cautioned VA against seeking additional medical opinions where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant’s claim. Mariano v. Principi, 17 Vet. App. 305, 312 (2003); see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). Accordingly, given the favorable opinions of record, the Board finds that the evidence is in relative equipoise with the Veteran’s claim for entitlement to service connection for depressive disorder to include as secondary to service connected prostate cancer status-post prostatectomy and residuals. Thus, the claim is granted. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk