Citation Nr: 18153376 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-13 316 DATE: November 27, 2018 ORDER Restoration of the 100 percent rating for prostate cancer status post radical retropubic prostatectomy with bilateral wide excision and bilateral pelvic lymph node (“prostate cancer disability”), effective from November 1, 2014 to May 8, 2016, is granted. FINDINGS OF FACT 1. The discontinuance of the 100 percent evaluation for prostate cancer is not a formal rating reduction in this case, 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 in this case. 3. From November 1, 2014 to May 8, 2016, the evidence demonstrated that the Veteran continued to have local recurrence or metastasis of his prostate cancer, such that continued application of a 100 percent evaluation for prostate cancer disability was appropriate under Diagnostic Code 7528. CONCLUSION OF LAW The discontinuance of the 100 percent evaluation for prostate cancer disability, effective from November 1, 2014 to May 8, 2016, was improper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.150(e), 4.1, 4.115b, Diagnostic Code 7528 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from January 1966 to June 1966 and May 1968 to September 1969. Discontinuance of 100 percent, effective from November 1, 2014 to May 8, 2016 for prostate cancer disability The Veteran has contended that the rating assigned for a prostate cancer disability should not have been reduced from 100 percent to 60 percent. The Board finds that the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344 are not applicable because the claim at issue does not constitute a formal reduction. Rather, 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 evaluation 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). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under Diagnostic Code 7528, a 100 percent rating is warranted for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. A note after Diagnostic Code 7528 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 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 to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. In September 2012, the Veteran’s request for a higher rating for service-connected prostate cancer disability was obtained and associated with the record. In a December 2012 VA rating decision, a 100 percent disability rating was assigned, effective from July 16, 2012. 38 C.F.R. § 4.115b, Diagnostic Code 7528. In April 2014, the Regional Office (RO) proposed to reduce the Veteran’s prostate cancer disability rating from 100 percent to 60 percent. The April 2014 notice letter set forth all of the information required by 38 C.F.R. § 3.105(e), to include the proposed reduction in compensation payable and 60-day response period. In an August 2014 VA rating decision, the RO reduced the rating for the Veteran’s prostate cancer disability from 100 percent to 60 percent, effective from November 1, 2014. Thus, the due process requirements for the reduction of the assigned prostate cancer disability rating were satisfied. 38 C.F.R. § 3.105(e). In an April 2014 VA examination report, the VA examiner noted the Veteran had been diagnosed with prostate cancer in 2008 and completed a radical prostatectomy in August 2008 and androgen deprivation and salvage radiation therapy in 2012. The Veteran’s prostate-specific antigen (PSA) was noted to be less than 0.01 in September 2013. Since that time, the Veteran’s PSA had been undetectable and he was in biochemical remission. Additional VA treatment records noted that the Veteran’s PSA was less than 0.01 and undetectable in May 2014. However, by May 2015, it was evident that the Veteran’s PSA value had increased to 0.05. It was observed to be low, but discernable. The Veteran reported that the VA Medical Center had been monitoring the Veteran’s PSA levels, which would fluctuate up and down by a fraction. In a June 2016 VA medical opinion, the examiner found that a May 2016 PSA was 0.10. He noted that this indicated biochemical recurrence. The examiner concluded that the Veteran was out of remission and had active cancer. The Board finds that the evidence of record reveals that local recurrence or metastasis of the Veteran’s prostate cancer has occurred since November 1, 2014. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. Accordingly, when resolving reasonable doubt in favor of the Veteran, the Board finds that the reduction in rating from 100 percent to 60 percent for the Veteran’s prostate cancer disability, effective from November 1, 2014 to May 8, 2016, was improper, and the 100 percent rating is therefore restored as though the reduction had not occurred. See 38 U.S.C. § 5107(b). T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel