Citation Nr: 18154247 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 18-24 065 DATE: November 29, 2018 ORDER An effective date prior to September 8, 2015, for the grant of service connection for prostate cancer is denied. Restoration of the 100 percent rating for prostate cancer is denied. FINDINGS OF FACT 1. There was no properly filed unadjudicated/pending claim of service connection for prostate cancer before September 8, 2015. 2. The Veteran’s treatment for his service-connected prostate cancer ended in September 2015, and there has been no local reoccurrence or metastasis since then. 3. In a rating decision dated in September 2016, the RO proposed to reduce the rating for the Veteran’s service-connected prostate cancer disability from 100 percent to 40 percent; and the RO provided requisite notice to the Veteran of the proposed reduction. 4. In a rating decision dated in February 2018, the RO reduced the rating for the Veteran’s service-connected prostate cancer disability from 100 percent to 40 percent effective May 1, 2018. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 8, 2015, for the grant of service connection for prostate cancer are not met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.114, 3.400(b)(2)(ii). 2. The RO’s February 2018 reduction in rating for service-connected prostate cancer from 100 percent to 40 percent was not improper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.30, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to May 1968. The case is on appeal from rating decisions issued in December 2015 and February 2018. The December 2015 rating decision granted service connection for prostate cancer with a rating of 100 percent effective September 14, 2015. The February 2018 rating decision reduced the rating for the Veteran’s service-connected prostate cancer disability from 100 percent to 40 percent effective May 1, 2018. In a rating decision dated in April 2018, the RO awarded an earlier effective date of September 8, 2015 for the grant of service connection for prostate cancer. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An effective date prior to September 8, 2015, for the grant of service connection for prostate cancer In a rating decision dated in December 2015, the RO granted service connection for prostate cancer with a rating of 100 percent effective September 14, 2015. In a notice of disagreement dated in January 2016, the Veteran requested an earlier effective date of June 1, 2015, for the grant of service connection. In a rating decision dated in April 2018, the RO granted an earlier effective date of September 8, 2015 for the award of service connection for prostate cancer. VA regulations provide that the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of presumptive service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2)(ii). Effective dates for disability compensation awarded to Nehmer class members (a Vietnam veteran who has a covered herbicide disease) is set forth at 38 C.F.R. § 3.816. See also 38 C.F.R. § 3.114. The delimiting date for claims for compensation under these provisions is May 3, 1989. 38 C.F.R. § 3.816. Effective March 24, 2015, VA abolished regulations providing for informal claims for compensation and required that all claims be submitted on standardized VA forms. See 79 Fed. Reg. 57660 (Sept. 25, 2014). See also 38 C.F.R. § 3.151(a). On July 14, 2015, the RO received an unsigned VA Form 4138 (Statement in Support of Claim), which expressed that the Veteran was requesting service connection for prostate cancer. In a letter dated July 31, 2015, the RO notified the Veteran that all claims for service connection must be filed on a standardized form/application for benefits. The RO added that in addition to a properly completed claim for compensation (VA Form 21-526EZ), the claims process could be initiated by the submission of a completed Intent to File form (VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension Benefits, or Survivors Pension and/or DIC). See page 2 of RO’s July 31, 2015 letter to Veteran. See also 38 C.F.R. § 3.155(b)(1)(ii), regarding VA’s prescribed Intent to File form. In a letter dated September 8, 2015, the RO advised the Veteran that it had received the Veteran’s Intent to File on September 8, 2015; and informed that he should submit a completed claim for compensation within one year of the September 2015 Intent to File in order for VA to begin processing his claim. The RO added that the Veteran could seal an effective date of September 8, 2015 (based on his September 8, 2015 Intent to file) for an ensuing award of compensation if a properly completed claim on the standardized form (VA Form 21-526EZ) was received within one year of the Veteran’s September 8, 2015 Intent to File. On September 14, 2015, the RO received a completed VA Form 21-526EZ claim for service connection for prostate cancer. On review of the record the Board finds that there is no prior unadjudicated formal or informal claim for service connection for prostate cancer before September 8, 2015. Although correspondence received by VA in July 2015 indicated that the Veteran was requesting service connection for prostate cancer, this correspondence, which was tantamount to an informal claim for service connection, was received after VA’s March 2015 abolishment of informal claims (this was done because it was sometimes very hard for the VA to figure out if Veterans were, or were not, filing claims, causing confusing and delays), and thus was unacceptable as a claim for compensation. Moreover, while it appears that the completed standardized claim Form 21-526EZ received by VA on September 14, 2015 was signed by the Veteran on May 6, 2015, it was not received by VA until September 14, 2015. See 38 C.F.R. § 3.400 (b)(2)(ii), providing that the effective date of an original award of presumptive service connection is the date of receipt of claim or the date entitlement arose, whichever is later. The Board further observes that while the Veteran had wartime service in Vietnam and his prostate cancer is a covered herbicide disease, his claim for compensation was not received until 2015; long after the delimiting date of May 3, 1989 at 38 C.F.R. § 3.816. See also 38 C.F.R. § 3.114. An earlier effective date under the Nehmer class provisions at 38 C.F.R. § 3.816 is thus not possible. In short, the Veteran is requesting an earlier effective date of June 1, 2015 for the grant of service connection for prostate cancer; and on review of the record it appears that he may have been attempting to file a claim for service connection for prostate cancer since May/June 2015. However, VA requires that claims for service connection be filed on prescribed VA forms; and a properly filed claim for service connection on the prescribed standardized form was not received by VA until September 8, 2015. The preponderance of the evidence is therefore against the claim for an earlier effective date for the grant of service connection for prostate cancer and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Restoration of the 100 percent rating for prostate cancer In April 2015, the Veteran was diagnosed with prostate cancer. See, e.g., VA medical (prostate biopsy) records dated in April 2015. See also December 2015 VA prostate cancer examination report. In September 2015, the Veteran filed a claim for service connection; and in a rating decision dated in December 2015 the RO granted service connection for active prostate cancer with a rating of 100 percent effective September 14, 2015 (later corrected to September 8, 2015). After the April 2015 diagnosis of prostate cancer, the Veteran underwent Androgen deprivation therapy (which was completed in June 2015); and radiation therapy, which ended in September 2015, for his prostate cancer. See December 2015 VA prostate cancer examination report. There is no evidence of any local reoccurrence or metastasis after September 2015. See, e.g., August 2016 VA examination report. See also VA medical records dated in April 2018, advising “psa stable for >3yrs.” In August 2016, the Veteran underwent a new VA prostate cancer examination, which found the Veteran’s prostate cancer to be inactive/in remission; and in a rating decision dated in September 2016, the RO proposed to reduce the rating for the Veteran’s service-connected prostate cancer disability from 100 percent to 40 percent based on voiding dysfunction residuals. Ultimately, in a February 2018 rating decision, the RO reduced the rating from 100 percent to 40 percent effective May 1, 2018. The Veteran has appealed for reversal of the rating reduction. The Veteran’s service-connected prostate cancer has been rated under the malignant neoplasms of the genitourinary system criteria at Diagnostic Code 7528 throughout the appeal period, which provide 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. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. 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). Id. If there has been no local reoccurrence or metastasis, the disability will be rated based on such residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. With this as backdrop, the Board finds that the RO’s reduction of the 100 percent rating for service-connected prostate cancer after the prescribed 6 month definite convalescent period following cessation of the cancer intervention was properly done. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. As stated before, the Veteran’s radiation therapy for his prostate cancer ended in September 2015, and there is no, very fortunately, evidence of any local reoccurrence or metastasis thereafter. See, e.g., August 2016 VA examination report; and VA medical records dated in April 2018. Additionally, in September 2016 the RO issued a mandatory rating proposing the reduction; provided the Veteran with notice of and detailed reasons for the proposed reduction at his latest address of record; and gave the Veteran the requisite 60 days in which to respond before implementing the reduction. In fact, the Board notes that given the absence of active cancer, the RO kept the 100 percent rating in place for much longer than prescribed by regulation. However, the Board will not further review that aspect of the issue since it is beneficial to the Veteran. See Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014) (it is outside the scope of a veteran’s direct appeal for the Board to revisit an evaluation less than what was awarded by the RO). The Board accordingly finds that the February 2018 reduction in rating from 100 percent to 40 percent for prostate cancer was done pursuant to, and in compliance with, mandatory law. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. See also 38 C.F.R. § 3.105(e). Restoration of the 100 percent rating for service-connected prostate cancer is therefore not warranted. This is the issue on appeal. Although the May 2018 effective date of the reduction is more generous than that provided by law, this favors the Veteran; and so will not be disturbed. The issue of whether a rating higher than 40 percent is warranted for residual voiding or renal dysfunction is not before the Board. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs