Citation Nr: 18151505 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-07 059 DATE: November 19, 2018 ORDER The 100 percent disability rating for prostate cancer is restored, effective February 1, 2014. FINDING OF FACT The reduction of the Veteran’s disability rating from 100 percent to 40 percent for his service-connected prostate cancer was based on a VA examination conducted prior to the cessation of therapeutic treatment rather than a VA examination that was required six months following the cessation of therapeutic treatment. CONCLUSION OF LAW The decision to reduce the Veteran’s disability rating for service-connected prostate cancer from 100 percent to 40 percent was not proper; restoration of the 100 percent rating is warranted. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.115b, Diagnostic Code (DC) 7528 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision that reduced the Veteran’s 100 percent disability rating for prostate cancer to 40 percent, effective February 1, 2014. The Veteran contends that this reduction was improper. In an April 2010 rating decision, the Regional Office (RO) granted service connection for prostate cancer and assigned a disability rating of 100 percent, effective November 13, 2009. In a February 2013 rating decision, the RO proposed to reduce the disability rating for this condition from 100 percent to 0 percent based on a February 2013 VA examination showing that the Veteran’s prostate cancer was in remission and that the Veteran did not suffer from any residuals thereof. Shortly thereafter, the VA examiner provided an addendum opinion indicating that the Veteran suffered from a voiding dysfunction. In July 2013, the Veteran submitted a private examination report and private treatment records indicating that his prostate cancer was not in remission and that he underwent radiation therapy from July 2013 to September 2013. In the November 2013 rating decision that followed, the RO nevertheless implemented a reduction of the Veteran’s disability rating from 100 percent to 40 percent, effective February 1, 2014. At the outset, the Board recognizes that the Veteran’s 100 percent rating was in effect from November 2009 to February 2014, a period of less than five years. As such, the specific protocols for reducing protected ratings are inapplicable to this claim. See 38 C.F.R. § 3.344(a)-(b) (only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction of a disability rating that has been in effect for five or more years); see also Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). Rather, the Veteran’s claim is governed by 38 C.F.R. § 3.344(c), which applies to disabilities that are likely to improve (i.e., those with ratings in effect for five years or less). In these cases, a re-examination disclosing improvement in a disability will warrant a rating reduction. VA is also required to comply with several general regulations applicable to all rating-reduction cases regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown, 5 Vet. App. at 420. These regulations require that VA rating reductions be based upon a review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based on the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, it must be shown that an improvement in a disability has actually occurred and that the improvement actually reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). Though a rating reduction must be supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating may also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-81 (1992). Significantly, the burden is on VA to show improvement. See 38 U.S.C. § 5112; 38 C.F.R. § 3.105. Regarding prostate cancer, specifically, a note in 38 C.F.R. § 4.115b, DC 7528, provides that following the cessation of surgical, X-ray, antineoplastic, chemotherapy, or other therapeutic procedure, a 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. The United States Court of Appeals for Veterans Claims has consistently held that when an RO reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). When a rating reduction is made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. Based on a review of the evidence of record, the Board finds that the reduction of the Veteran’s 100 percent disability rating to 40 percent was improper, as the applicable regulatory requirements were not followed prior to the reduction. Specifically, the Veteran was not afforded a mandatory VA examination at the expiration of six months following the cessation of his radiation therapy. 38 C.F.R. § 4.115b, DC 7528. Instead, the RO based this reduction on the February 2013 VA examination and addendum opinion that found that the Veteran’s prostate cancer was in remission and that the Veteran suffered from a voiding dysfunction. There is no indication that the RO considered the Veteran’s July 2013 private examination report or related medical records setting out that his prostate cancer had returned and that he underwent radiation therapy from July 2013 to September 2013. The evidence clearly indicates that the Veteran underwent therapeutic treatment for prostate cancer until September 2013, yet he was not afforded a new VA examination. Thus, the Board finds that this reduction was made without following the applicable regulations, specifically that which mandates the provision of a reexamination six months following the discontinuance of therapeutic treatment. See 38 C.F.R. § 4.115b, DC 7528. The reduction is therefore void ab initio, and restoration of the 100 percent rating for prostate cancer from February 1, 2014, is warranted. (continued on next page) As the Board is restoring the Veteran’s 100 percent rating for prostate cancer and, therefore, granting in full the benefits sought on appeal, an in-depth discussion of whether VA correctly followed the appropriate notice requirements is unnecessary. If any error was committed with respect to these requirements, such error was harmless and need not be further considered. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel