Citation Nr: 18152242 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-25 624 DATE: November 21, 2018 ORDER The reduction in the rating for prostate cancer from 100 percent disabling to 20 percent disabling, effective December 1, 2015, was proper. FINDINGS OF FACT 1. The discontinuance of the 100 percent evaluation for prostate cancer is not a formal rating reduction, as the “reduction” was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528. 2. The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed. 3. Following December 1, 2015, the evidence of records does not demonstrate that the Veteran continued to received treatment for any active malignancy of his genitourinary system or had any local recurrence or metastasis of his prostate cancer, such that continued application of a 100 percent evaluation for residuals of prostate cancer were appropriate under 38 C.F.R. § 4.115b, Diagnostic Code 7528. CONCLUSION OF LAW The discontinuance of the 100 percent evaluation, effective December 1, 2015, for prostate cancer was proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 4.1, 4.7, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1966 to March 1969. He died in December 2016. The appellant is his surviving spouse. 1. Whether the reduction in the rating for prostate cancer from 100 percent disabling to 20 percent disabling, e ffective December 1, 2015, was proper. Here, the Veteran’s prostate cancer has been evaluated as 100 percent disabling from November 5, 2011 through December 1, 2015, at which time the rating was reduced, as a matter of law, to 20 percent, based on residuals of prostate cancer for awakening to void three to four times per night. As background, in a February 2012 rating decision, the agency of original jurisdiction (AOJ) granted the Veteran’s claim for service connection for prostate cancer and assigned a 100 percent evaluation, effective November 5, 2011, date of claim. He underwent a VA examination in March 2014. In a July 2014 rating decision, the AOJ proposed to reduce the Veteran’s prostate cancer from 100 percent disabling to 20 percent disabling. The Veteran was informed of that proposed reduction and his right to a pre-determination hearing in a July 2014 notification letter. In a September 2015 rating decision, the AOJ finalized the reduction of the Veteran’s prostate cancer from 100 percent disabling to 20 percent disabling, effective December 1, 2015. The Veteran timely appealed the reduction issue for his prostate cancer. Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system (i.e., prostate cancer) is assigned a 100 percent evaluation. However, a Note following that Diagnostic Code, explains that following the cessation of surgical, X-ray, antineo-plastic 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 section 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note (2017). Here, the Veteran’s residuals of prostate cancer were manifested by awakening to void two three to four times per night, and is rated 20 percent under voiding dysfunction per the regulation. In this case, the Veteran was assigned a 100 percent evaluation for his prostate cancer in a February 2012 rating decision. Following the provisions in the Rating Schedule, the Veteran underwent the mandatory VA examination of his prostate cancer in March 2014. Based on examination findings, in an July 2014 rating decision, the AOJ proposed to reduce the Veteran’s prostate cancer evaluation from 100 percent to 20 percent because his cancer was in remission with residuals of awakening to void three to four times per night. Additional symptoms of daytime voiding intervals between two and three house and inactive disease were noted. Initially, the Board has considered whether the claim at issue would be most appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, the Board does not find that these provisions are applicable in the present case. This is 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 residuals. Therefore, the AOJ’s action was not a “rating reduction,” as that term is commonly understood. 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). In the present case, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, referable to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In other words, this is in essence a staged rating case, but it is not a formal reduction case because of the clear temporal element of Diagnostic Code 7528. The rating reduction in this case was procedural in nature and by operation of law. The Board need only determine to determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under DC 7528. As discussed further below, the Board finds that the procedural requirements were properly followed in this case and the “reduction” was by operation of law under Diagnostic Code 7528. Regarding the applicability of the procedural requirements under 38 C.F.R. § 3.105 (e) in this case, the Court has held that if the Veteran was receiving no compensation at the time of the reduction, notice under 38 C.F.R. § 3.105 (e) was not required. See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). The Court explained that the plain meaning of 38 C.F.R. § 3.105 (e) was that such notice is warranted only where there is a reduction in compensation payments currently being made. Id. Similarly, in the precedential opinion VAOPGCPREC 71-91 (Nov. 1991), the General Counsel for VA previously held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable. In this case, the Veteran was in receipt of compensation benefits at the 100 percent rate from November 5, 2011 through December 1, 2015, at which time his compensation benefits were reduced to 20 percent. Consequently, the provisions of 38 C.F.R. § 3.105(e) are applicable in the instant case. The Board finds that the AOJ satisfied the due process notification requirements under 38 C.F.R. § 3.105. The Veteran underwent a VA examination for his prostate cancer in March 2014 and in a June 2014 rating decision, the Veteran’s 100 percent evaluation for prostate cancer was proposed to be reduced to 20 percent based on the examination. The Veteran received notice of the proposed reduction and his rights in a letter dated the same month. The Veteran did not request a hearing although in an August 2014 telephone conversation the Veteran alleged that his condition had not improved and requested VA obtain his medical records at a VA facility. After considering this additional evidence, the AOJ finalized the reduction of the Veteran’s 100 percent evaluation to 20 percent for prostate cancer in a September 2015 rating decision, effective December 1, 2015. The Veteran received notification of this rating decision in September 2015. The effective date of the reduction was the last day of the month after expiration of the 60-day period from the date of notice of the September 2015 final rating action, as set forth in the applicable VA regulation. In light of these facts, the Board finds that the particularized procedure for discontinuing the Veteran’s 100 percent evaluation for his prostate cancer was appropriately and adequately completed in this case. See 38 C.F.R. § 3.105 (e). Turning to the question as to whether the Veteran meets the criteria for continued evaluation under Diagnostic Code 7528 for the period beginning December 1, 2015, the Board finds that the evidence in this case does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer. Therefore, the discontinuance of the Veteran’s 100 percent evaluation for his prostate cancer was proper. The Veteran argued that his prostate cancer symptoms have not improved. In support of his claim, he requested that VA obtain updated VA treatment records. A review of VA treatment records lists active problems of benign hypertrophy of the prostate without urinary obstruction and a history of prostate cancer. In March 2013, the Veteran could void in a urinal without difficulty. April 2013 urology records note that the Veteran had been voiding well and that “his stream has immensely improved and he is now rarely experiencing nocturia.” Notably, medical records do not show ongoing treatment for prostate cancer. The Veteran underwent a VA prostate cancer examination in March 2014. The examination report indicates that his current disease was in remission. As for voiding dysfunction, the Veteran had daytime voiding interval between 2 and 3 hours, and nighttime awakening to void 3 to 4 times. There was no evidence of renal dysfunction or other pertinent physical findings. In his November 2015 Notice of Disagreement, the Veteran claimed that he was entitled to a rating in excess of 20 percent because he has “severe” residuals from his prostate cancer, such as issues with voiding dysfunction and stress incontinence. In December 2016, VA was notified of the Veteran’s death. Based on the foregoing evidence, the Board finds that discontinuance of the 100 percent evaluation was proper in this case. Although the Veteran asserted that his prostate cancer residuals were severe, he was not a competent to make such assertions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). To the extent that the Veteran stated that his prostate cancer symptoms were severe, his contention is outweighed by that of the VA treatment records indicating that his prostate cancer was in remission after undergoing surgical procedures in 2012 and 2013 and that he was voiding well. The Board finds that the evidence from the medical professionals in this case, particularly the evidence from the VA examiner, to be the most probative evidence regarding whether, since December 1, 2015, the Veteran had local recurrence or metastasis of his prostate cancer. The evidence indicates that his prostate cancer was in remission. Since December 1, 2015, the evidence does not indicate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; or that he had any continued active malignancy of his genitourinary system. The evidence indicates that the Veteran’s prostate cancer residuals were manifested by, at most, awakening to void three to four times per night warranting a 20 percent evaluation under 38 C.F.R. § 4.115a. In conclusion, the evidence of record does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy following December 1, 2015. Nor does the evidence demonstrate that he continued to have any active malignancy of his genitourinary system, or any local recurrence or metastasis of his prostate cancer. Accordingly, given the lack of recurrence or metastasis of the prostate cancer on or after December 1, 2015, the reduction of the Veteran’s 100 percent rating for prostate cancer was proper. See 38 C.F.R. § 4.115b, Diagnostic Code 7528; Rossiello v. Principi, 3 Vet. App. 430 (1992). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel