Citation Nr: 18154025 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-43 553 DATE: November 28, 2018 ORDER The reduction of the Veteran’s disability rating for prostate cancer from 100 percent to 40 percent effective May 1, 2016, was proper. FINDINGS OF FACT 1. Radiation treatment for the Veteran’s prostate cancer ended in 2000. 2. The RO met all procedural requirements in executing the reduction of the disability rating for residuals of prostate cancer, effective May 1, 2016. CONCLUSION OF LAW The reduction of the disability rating for prostate cancer from 100 percent to 40 percent effective, effective May 1, 2016, was proper. 38 U.S.C. 38 C.F.R. § 1155, 5107; 38 C.F.R. § 3.105(e), 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1948 to February 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) RO. The Board remanded the claim on appeal in January 2018 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Whether the reduction of the Veteran’s disability rating for prostate cancer from 100 percent to 40 percent effective May 1, 2016, was proper. In this case, a February 2000 rating decision granted service connection for prostate cancer and assigned a 100 percent disability rating. An October 2014 rating decision proposed to reduce the evaluation to 10 percent; however, the February 2016 rating decision effectuated a reduction to 20 percent, effective May 1, 2016. An August 2016 rating decision increased the rating to 40 percent, effective May 1, 2016. As a preliminary matter, the Board has recharacterized the appeal as shown above. The August 2016 statement of the case phrased the issue as “[e]ntitlement to an increased evaluation of prostate cancer residuals greater than 40 percent disabling from May 1, 2016.” The issue of entitlement to an increased disability rating for prostate cancer, however, is not within the scope of the current appeal. In cases where a veteran’s disability rating is reduced, the issue is whether the reduction of the disability rating was proper. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) (“this is a reduction case, not an increase case”). The Court has advised that the issue is not to be phrased as “entitlement to an increased rating, including whether the veteran is entitled to restoration of a previous rating.” See Green v. Nicholson, 21 Vet. App. 512 (2006) (citing Dofflemyer, 2 Vet. App. at 279-80). Here, the reduction issue did not arise from a claim for an increased rating nor has the Veteran since appealed an increased rating issue. In this regard, the February 2016 rating decision reduced the disability rating of prostate cancer from 100 percent to 20 percent effective May 1, 2016. The Veteran then filed a notice of disagreement (NOD) in March 2016, in response to the reduction. An August 2016 rating decision increased the evaluation to 40 percent, effective May 1, 2016, but the Veteran did not appeal from that decision. Thus, the Board’s jurisdiction does not extend to deciding whether an increased rating is warranted for prostate cancer. See Dofflemyer, 2 Vet. App.at 279-80. Further, the Board notes that 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 RO’s action was not a “rating reduction,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). Rather, the rating reduction in this case was procedural in nature and by operation of law. Thus, the Board only need 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. Under Diagnostic Code (DC) 7528, a malignant neoplasm of the genitourinary system (i.e., prostate cancer) is assigned a 100 percent evaluation. However, a Note following that DC, 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, DC 7528, Note. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). Here, the due process requirements were properly carried out by the RO. On October 28, 2014, the RO notified the Veteran of a proposed rating reduction, setting forth all material facts and reasons for the reduction. At that time the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced, and to request a predetermination hearing if desired. In November 2014, he submitted evidence and argument, but did not request a predetermination hearing. The RO took final action to reduce the disability rating in a February 2016 rating decision, and the rating was reduced from 100 to 20 percent, effective May 1, 2016. The RO informed the Veteran of this decision by letter dated February 18, 2016. Subsequently in an August 2016 rating decision, pursuant to an August 2016 VA fee-based examination, the RO increased the rating to 40 percent effective May 1, 2016. Based on these facts, the Board finds that the procedure for discontinuing the Veteran’s 100 percent evaluation for his prostate cancer was appropriately completed in this case in accordance with 38 C.F.R.§ 3.105(e). Furthermore, in considering the evidence of record under the laws and regulations as set forth above, the Board also concludes there that is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under DC 7528 after May 1, 2016. See 38 C.F.R. § 4.7. The Veteran is no longer receiving any surgical, X-ray, antineo-plastic chemotherapy or other therapeutic procedure for prostate cancer, which is the requirement for a 100 percent disability rating. The examination upon which the reduction is based was a VA prostate cancer examination conducted on September 11, 2014. At that examination, the examiner noted that the prostate cancer was in remission and treatment was completed. The examiner indicated that following his initial diagnosis of prostate cancer in 1999, the Veteran opted to have radiation treatments; his clinician conducted six weeks of radiation treatment. The Veteran did well, ending his radiation treatments in 2000. The Veteran’s current prostate-specific antigen (PSA) was normal. The Veteran also underwent a VA fee-based examination in August 2016 and the examiner noted that the Veteran’s prostate cancer was in remission and all cancer treatment, to include radiation and hormonal therapy, had been completed and ended in 2000. The Veteran’s medical records likewise establish that radiation treatment ended well before May 2016. In short, the evidence shows his radiation treatment had ended at least six months prior to May 1, 2016. The Board acknowledges the Veteran’s contentions in his November 2014 statement opposing the proposed reduction. He asserted that the September 2014 examination was less than ten minutes, no physical exam was conducted, and that the examiner did not review the medication list provided by the Veteran. The Court has ruled that there is a “presumption of regularity” under which it is presumed that VA examiners and other government employees have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The Board has reviewed the VA examination report and has found no clear evidence that the VA examiner did not conduct the examination in an appropriate manner. The examiner reviewed the Veteran’s VA claims file. The Board also notes that the medical and treatment history reported by the examiner is consistent with the Veteran’s private treatment records as well as a subsequent VA fee-based examination conducted in August 2016. For these reasons, the reduction from 100 percent to 40 percent effective May 1, 2016, was proper. There is no reasonable doubt to the resolve in the Veteran’s favor. Finally, the Board notes that the Veteran is properly rated at 40 percent for his prostate cancer residuals. As explained above, if there has been no local recurrence of metastasis of the neoplasm, prostate cancer is to be rated based on residuals of either voiding dysfunction or renal dysfunction, whichever is predominant. Voiding dysfunction is evaluated under the rating criteria for urine leakage, urinary frequency, or obstructed voiding based on the nature of the disability in question. 38 C.F.R. § 4.115a. Pertinent here, the next highest, and the maximum, rating of 60 percent for voiding dysfunction causing urine leakage is warranted where urine leakage requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. For urinary frequency, a maximum rating of 40 percent is warranted where there is evidence of daytime voiding interval less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. Higher ratings are warranted if renal dysfunction is present. See 38 C.F.R. § 4.115a. The Board notes renal dysfunction has not been identified as a residual manifestation of the Veteran’s prostate cancer residuals by the competent medical evidence. At the VA fee-based examination in August 2016, the examiner noted that the Veteran experienced voiding dysfunction that caused urine leakage that required absorbent materials to be changed two to four times per day. The examiner noted that the Veteran’s voiding dysfunction did not require the use of an appliance and did not cause increased urinary frequency. The Veteran’s voiding dysfunction did not cause any signs or symptoms of obstructed voiding. In his March 2016 notice of disagreement, the Veteran contended that he wears absorbent materials that must be changed 2 or more times per day, awakens to void five times per night, and on occasion must void more than once an hour. The Veteran’s representative contended in a September 2016 Statement of Accredited Representative in an Appealed Case that the Veteran voids nearly every hour during the day and never goes longer than an hour and a half without voiding during the night. In an April 2018 correspondence, the Veteran reported that he wears absorbent materials during the day and at night. The Board finds that after a careful review of the evidence, the 40 percent rating is proper. The VA examinations, as well as the lay evidence of record and private treatment records, do not document any complaints of continual urine leakage or urinary incontinence requiring the use of an appliance or wearing absorbent materials which must be changed more than four times per day, as required for a 60 percent rating based on voiding dysfunction. The Board acknowledges the Veteran’s contention in his September 2016 substantive appeal that a 100 percent rating is warranted because his prostate cancer has made it impossible for him to have sex. However, the Board notes that the Veteran is already service-connected for erectile dysfunction and is receiving special monthly compensation for loss of a creative organ, and thus, the Veteran is already being compensated for this symptomatology. In sum, the 40 percent rating assigned was proper. There is no reasonable doubt to the resolve in the Veteran’s favor. Accordingly, the appeal is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel