Citation Nr: 18153482 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-27 015 DATE: November 27, 2018 ORDER The procedural requirements for a reduction of the Veteran’s rating for status-post prostate cancer, from 100 percent to 40 percent, effective May 1, 2015, were properly followed; however, a 60 percent disability rating is warranted. To that extent, the appeal is granted. FINDINGS OF FACT 1. A March 2014 rating decision granted service connection for prostate cancer and assigned a temporary evaluation of 100 percent effective October 25, 2013. 2. A September 2014 rating decision proposed a reduction of the disability rating assigned for status-post prostate cancer from 100 percent to 40 percent. 3. A February 2015 rating decision effectuated the proposed reduction of the disability rating for status-post prostate cancer from 100 percent to 40 percent, effective May 1, 2015. 4. The 100 percent disability rating for status-post prostate cancer had been in effect for less than five years. 5. During an August 2014 VA reexamination, the Veteran reported that he continued to have problems with urinary incontinence requiring the change of absorbent materials 2 times per day; and that his urinary incontinence was symptomatic when bending and twisting. 6. With respect to the assigned disability rating reduction from 100 to 40 percent on May 1, 2015, the August 2014 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 and was manifested by voiding dysfunction requiring the change of absorbent materials two-to-four times per day. 7. Post-reduction statements from the Veteran reflect that his voiding dysfunction requires the change of absorbent materials five-to-six times a day. 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. 2. The criteria for the restoration of a 100 percent disability rating for status-post prostate cancer have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.115a, Diagnostic Codes 7527, 7258. 3. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s status-post prostate cancer residuals warrant the assignment of a 60 percent, rather than 40 percent, disability rating. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 4.115a, Diagnostic Code 7527. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1969. For his service, he was awarded the Bronze Star. In May 2016, the Veteran submitted VA medical records with a statement that he has been diagnosed with diabetes mellitus. THIS MATTER IS REFERRED TO THE RO so that the Veteran can be notified of the necessary information and form documents that he must provide to VA to file a claim. Rating Reductions The Veteran was diagnosed with prostate adenocarcinoma on July 19, 2013. He underwent laparoscopic surgery in October 2013; and radiation treatment until March 2014. In a March 2014 rating decision, the RO granted service connection for prostate cancer and assigned a temporary evaluation of 100 percent pursuant to 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7527. The RO reduced the disability rating from 100 percent to 40 percent in February 2015. The Veteran appealed for restoration. Where a rating has been in effect for less than five years, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. §§ 3.344(a); 3.344(c); 3.343(a). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown v. Brown, 5 Vet. App. 413, 421. Not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Id. Where a reduction in rating a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance and setting forth all material facts and reasons must be prepared. The veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof, and given 60 days to present additional evidence to show that compensation payments should be continued at their present level. The veteran must also be informed that he or she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e). Appropriateness of Rating Reduction In a September 2014 rating decision, the RO issued a rating decision that, among other things, proposed to reduce the Veteran’s service-connected status-post prostate cancer (previous characterized as prostate cancer) from 100 percent to 40 percent. A September 3, 2014, letter provided the Veteran with appropriate notice of the proposed reduction. In a February 2015 rating decision, the RO effectuated the proposed reduction, effective from May 1, 2015, noting that the Veteran had not submitted any evidence that the reduction should not be made. Prior to the reduction of his prostate cancer residuals, the Veteran had been afforded a VA examination in August 2014, upon which the proposed reduction was based. The examiner found the Veteran’s prostate cancer to be in remission post-surgery. The Veteran was found to have prostatectomy residuals that consisted of urinary leakage and erectile dysfunction (for which the Veteran has been service-connected). During the examination, the Veteran reported that he had continued problems with urinary incontinence, using 2 pads per day; and that his urinary incontinence was symptomatic with bending and twisting. In response to this statement, the examiner wrote in her report that the Veteran required absorbent material that had to be changed two-to-four times per day. In addition, she wrote that the Veteran did not have increased urinary frequency or urinary tract infections; no renal dysfunction; and no need for the use of an appliance. The Veteran’s PSA level (Prostate-Specific Antigen Test) was noted as 0.04 on April 4, 2014. The Veteran did not have any other residual conditions and/or complications due to prostate cancer or cancer treatment. Turning to the Veteran’s PSA level, the Board has considered the Veteran’s report that his PSA level had changed from 0.03 to 0.11; implicitly arguing that the increased level is evidence supportive of restoration of his 100 percent disability rating. However, while research indicates that there is no specific standard for gauging what “normal” or “abnormal” levels of PSA in the blood are, (since levels may vary over time in the same man depending on factors such as race, prescription drugs, prostatitis or a urinary tract infection at time of testing, etc...), in the past, most doctors considered PSA levels of 4.0 ng/mL and lower as normal. http://www.cancer.gov/types/prostate/psa-fact-sheet. In general, however, the consensus appears to be that the higher a man’s PSA level, the more likely it is that he has prostate cancer. Id. Given the medical evidence elicited in the August 2014 examination and contemporaneous VA and private treatment records in the claims file, the Board concludes that the April 2014 examination was adequate in terms of it showing improvement consistent with a reduction of the 100 percent rating under the provisions of 38 C.F.R. § 3.344(c). As such, the reduction from 100 percent to 40 percent was procedurally proper in accordance with the notice provisions under 38 C.F.R. § 3.105 and based on the evidence available at the time, and restoration of the 100 percent rating is denied. As discussed below, however, the Board finds that the reduction should have been to 60 percent, not 40 percent. Post-Reduction Disability Rating The Veteran’s disability has been rated under voiding dysfunction, its predominant manifestation. Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed two-to-four times per day. A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 60 percent disability rating is the maximum schedular rating that can be assigned under voiding dysfunction. Turning to the assignment of a post-reduction disability rating, the Veteran reported during his August 2014 VA examination that he had continued problems with urinary incontinence, using two pads per day. Thus, the VA examiner noted on her report that the severity of the Veteran’s prostate cancer residuals required absorbent material which had to be changed two-to-four times per day. However, the Veteran has provided subsequent statements in which he asserts that his claim was incorrectly decided on the bases of his PSA level and that he wore five-to-six absorbent materials each day. The Veteran attempted to contact the RO via telephone to discuss his appeal; however, the RO never returned his telephone call because a Decision Review Officer (DRO) determined there was “no need to call the Veteran back because no changes were made in the [rating] decision and a telephone call [would] not allow a productive communication.” The DRO issued a statement of the case (SOC) related to the Veteran’s appeal that same day. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s prostate cancer residuals requires the changing of absorbent pads more than four times per day under DC 7527 due to voiding dysfunction. The Board finds that the Veteran is competent to report regularly changing his absorbent pads more than four times per day. Thus, a maximum scheduler rating of 60 percent under DC 7527 is warranted. As set forth above, there is no evidence of the Veteran having renal dysfunction. Additionally, there are no other applicable diagnostic codes that provide for a rating higher than 60 percent. Therefore, a discussion of these codes is not necessary. (Continued on the next page)   In sum, the reduction was proper, however, the reduction should have been to 60 percent, not 40 percent. To that extent, the appeal is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Talpins, Patricia