Citation Nr: 18155304 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-46 637 DATE: December 4, 2018 ORDER Whether a rating reduction from 100 percent to 20 percent, effective August 1, 2014, for prostate cancer was proper is denied. Entitlement to an increased rating higher than 20 percent for prostate cancer, effective August 1, 2014, is denied. FINDINGS OF FACT 1. Effective August 1, 2014, the Veteran’s service-connected prostate cancer demonstrated actual material improvement that is reasonably certain to be maintained under the ordinary conditions of life and work. 2. The Veteran’s prostate cancer is in remission and manifested by voiding dysfunction involving awakening to void 3 to 4 times per night. CONCLUSIONS OF LAW 1. The rating reduction from 100 percent to 20 percent effective from August 1, 2014, for the Veteran’s service-connected prostate cancer was proper. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.2, 4.115a, 4.115b, Diagnostic Code 7528. 2. The criteria for an increased rating higher than 20 percent for prostate cancer are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.115a, 4.115b, Diagnostic Code 7828. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes to the Board of Veterans’ Appeals (Board) from a May 2014 rating decision that reduced the Veteran’s service-connected prostate cancer rating from 100 percent to 0 percent, effective August 1, 2014. The 0 percent rating was later increased to 20 percent, effective August 1, 2014, in an April 2015 rating decision. 1. Whether a rating reduction from 100 percent to 20 percent, effective August 1, 2014, for prostate cancer was proper Initially, it is noted that where a reduction in an evaluation of a service-connected disability 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 must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). In this case, the reduction of the Veteran’s prostate cancer resulted in a reduction of compensation payments. Specifically, his combined disability rating went from 100 percent, effective November 2, 2011, to 20 percent, effective August 1, 2014. Therefore, the notice provisions of 38 C.F.R. § 3.105(e) apply. A May 2013 rating decision noted that the Veteran’s prostate cancer was proposed to be reduced from 100 percent to 0 percent, on the basis of an April 2013 VA examination report, which showed that his prostate cancer was presently in remission, and he presently had no residuals, including increased daytime urinary frequency, night time awakening to void, or the use of absorbent material. The Veteran was notified that he had 60 days to submit additional evidence showing that his compensation should be continued at the 100 percent rating. Based on review of the file, the notice provisions of 38 C.F.R. § 3.105(e) have been satisfied. Regarding rating reductions, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). In the present case, the 100 percent rating for the Veteran’s prostate cancer had been in effect since November 2, 2011; i.e., for less than five years. Thus, the provisions of 38 C.F.R. § 3.344(c); 3.343(a) apply, and an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. The Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). VA cannot reduce a Veteran’s disability evaluation without first finding, inter alia, that that an improvement has actually occurred in the Veteran’s service-connected disability and it has improved to the point that he or she is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Brown, 5 Vet. App. at 421. Care must be taken to ensure that a change in an examiner’s evaluation reflects an actual change in the Veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The question of whether a disability has improved involves consideration of the applicable rating criteria. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. As noted, the RO decreased the Veteran’s prostate cancer from 100 percent to 20 percent, effective August 1, 2014. The 100 percent disability rating had been in effect since November 2, 2011; i.e., less than five years. Therefore, a single reexamination disclosing improvement in the disability is sufficient to warrant reduction in a rating. See 38 C.F.R. § 3.344(c). The Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. A 100 percent rating is assigned following 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 § 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. An April 2013 VA examination report noted that the Veteran’s prostate cancer was in remission with no residuals. On the basis of this examination, the RO initially assigned a 0 percent rating for the Veteran’s prostate cancer, effective August 1, 2014. He underwent another VA examination in April 2015, which demonstrated that the Veteran’s prostate cancer was still in remission, but he had a voiding dysfunction due to the radiation treatment for prostate cancer. Specifically, he had daytime voiding interval between 2 and 3 hours; and nighttime awakening to void 3 to 4 times. Based on this examination, the RO increased the Veteran’s prostate cancer rating to 20 percent, effective August 1, 2014. Under the provisions of 38 C.F.R. § 4.115a, awakening to void between 3 to 4 times per night warrants a 20 percent rating. Based on the VA examinations in April 2013 and April 2015 demonstrating that the Veteran’s prostate cancer was in remission and presently manifested by voiding dysfunction between 3 to 4 times per night, VA has met the burden of showing that there has been improvement in the Veteran’s prostate cancer. Thus, a reduction in rating from 100 percent was proper. 2. Entitlement to an increased rating higher than 20 percent for prostate cancer, effective August 1, 2014 As noted above, the Veteran’s prostate cancer is rated as 20 percent disabling from August 1, 2014. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran contends that his prostate cancer symptoms are more severe than warranted for a 20 percent rating. The Board concludes that the Veteran’s prostate cancer disability does not warrant a rating higher than 20 percent. As noted above, the Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. A 100 percent rating is assigned following 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. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. In this case, the Veteran’s voiding dysfunction and particularly, urinary frequency, is predominant. An April 2013 VA examination report noted that the Veteran’s prostate cancer was in remission with no residuals. An April 2015 VA examination demonstrated that the Veteran’s prostate cancer was still in remission, but he had a voiding dysfunction due to the radiation treatment for prostate cancer. Specifically, he had daytime voiding interval between 2 and 3 hours; and nighttime awakening to void 3 to 4 times. Under the provisions of 38 C.F.R. § 4.115a, awakening to void between 3 to 4 times per night warrants a 20 percent rating. Daytime voiding between 2 and 3 hours, warrants a 10 percent rating, but the 20 percent rating was assigned based on the nighttime waking frequency. Further, there is no evidence of urine leakage or obstructive voiding that would warrant a higher rating under the specified rating criteria for such symptomatology. See 38 C.F.R. § 4.115a. For all the foregoing reasons, the Board finds that a rating higher than 20 percent is not warranted for the prostate cancer. There are no objective medical findings that would support the assignment of a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether the Veteran’s prostate cancer presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (“[R]ating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical.”). In the instant case, the Veteran’s prostate cancer is in remission and he has voiding dysfunction manifested by waking 3 to 4 times per night. This does not present an exceptional or unusual disability picture, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. The symptoms associated with the Veteran’s prostate cancer (i.e., voiding dysfunction) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 20 percent rating assigned under Diagnostic Code 523738 C.F.R. § 4.115a specifically contemplates these symptoms. (Continued on the next page)   The Board finds that the rating criteria reasonably describe the Veteran’s disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond