Citation Nr: 18155822 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-07 565 DATE: December 6, 2018 ORDER The reduction in the disability rating for a nodule of upper pole of left testicle from 20 percent to 0 percent was not proper, and is void ab initio. A disability rating in excess of 20 percent for a nodule of upper pole of left testicle is denied. FINDINGS OF FACT 1. In a June 2013 rating decision, the RO proposed reducing the 20 percent disability rating assigned for the Veteran’s service-connected nodule of upper pole of left testicle to a noncompensable (0 percent) rating. 2. The proposed reduction was implemented in an August 2014 rating decision, effective November 1, 2014. 3. The rating reduction for the Veteran’s disability rating for service-connected nodule of upper pole of left testicle was improper, and the 20 percent disability rating is restored. 4. The preponderance of evidence of record shows that the Veteran’s nodule of upper pole of left testicle does not result in renal dysfunction, a daytime voiding interval of less than one hour, awakening to void more than four times per night, changing of absorbent materials two to four times per day, or catheterization. CONCLUSIONS OF LAW 1. The June 2013 and August 2014 rating decisions that reduced the Veteran’s disability rating for his service-connected nodule of upper pole of left testicle were not proper and the reduction is void ab initio. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e) (2018). 2. The criteria for a rating in excess of 20 percent for a nodule of upper pole of left testicle have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.115, Diagnostic Code 7529 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 25, 1979 to July 5, 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a hearing before the undersigned in June 2018. Rating Reduction In March 2010, the Veteran filed a claim for an increased rating for his nodule of upper pole of left testicle. In a July 2010 rating decision, the RO continued the 20 percent rating for the Veteran’s disability, informing the Veteran that, while evidence revealed some improvement in the condition, sustained improvement had not been definitively established. It was noted that a June 2010 VA Genitourinary Examination report showed that there was no nodule in upper pole of the left testicle. The RO determined that without the nodule, there was no evidence to support a finding of urinary incontinence or urinary obstruction. The RO found that, since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination. On the code sheet, the RO indicated that the Veteran would be given a future examination in July 2015. The Veteran filed a timely notice of disagreement with the decision. He was provided with a VA GU Male Reproductive examination in May 2013. In a June 2013 rating decision, the RO proposed reducing the disability rating to a noncompensable (0 percent) rating, based on the May 2013 VA examination. On the rating code sheet, the Veteran’s nodule of the upper pole of the left testicle was noted to be a static disability. In August 2014, the RO reduced the Veteran's disability rating for his service-connected nodule of upper pole of left testicle to 0 percent, effective November 1, 2014. The RO noted that the Veteran had reported no voiding dysfunction and no recurrent symptomatic urinary tract or kidney infections. As such, evaluation of nodule, upper pole of left testicle, was decreased to 0 percent effective November 1, 2014. As an initial matter, where a reduction in an evaluation is warranted, and results in a reduction of overall compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. Moreover, the Veteran must be notified that he has 60 days to present additional evidence showing that compensation should be continued at the present level and that he has a right to a hearing to present evidence if he wishes. 38 C.F.R. § 3.105(e). Here, the Veteran was sent a letter in June 2013 accompanying the May 2013 rating decision informing him of the proposed action, the reasons and bases therefore, and presented him with 60 days to present additional evidence and to testify at a hearing before the RO if he so wished. Therefore, he was properly notified of his rights and given the appropriate time to submit evidence before his rating was reduced effective November 1, 2014. As such, VA met the due process requirements under 38 C.F.R. § 3.105(e) and (i). In addition to the due process requirements discussed above, prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, in certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. While material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.44(a). If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. 38 C.F.R. § 3.44(b). The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). After a review of the evidence, the Board determines that the overall reduction in the disability rating for the Veteran’s nodule of upper pole of left testicle was not proper. In the July 2010 rating decision which continued the 20 percent rating for the Veteran’s disability, the RO found that that there was a likelihood of improvement in his left testicle disability and that the disability was subject to a future review examination. However, in this case, the Veteran’s 20 percent disability rating had been in effect since January 1997. As such, the additional protections under 38 C.F.R. § 3.344 (a) and (b) are applicable. In other words, as the Veteran’s disability rating has been in effect for such a long period, 38 C.F.R. § 3.344 (c), which addresses disabilities that have not become stabilized and are likely to improve, is not applicable. In this case, a reexamination alone would not warrant a reduction in rating. Rather, material improvement in the physical or mental condition must be clearly reflected by the entire record—examination reports, medical records, and lay evidence. Even then, the rating agency must address whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Even if the RO were to consider the Veteran’s rating under the provisions of 38 C.F.R. § 3.344 (b), which pertains to situations where improvement is in doubt, the provisions set out in 3.344 (a) are applicable. Here, in its rating decisions, the RO failed to discuss the provisions of 3.344(a), as well as the substantive requirements under Faust. Instead, the RO simply determined that the Veteran did not currently meet the requirements for a 20 percent disability rating for his service-connected nodule of the upper pole of the left testicle, without considering the entire record. In addition, the June 2010 VA Genitourinary Examination upon which the RO continued a 20 percent rating in the July 2010 rating decision was more thorough and more appropriately addressed the Veteran’s disability symptoms than the May 2013 VA GU Male Reproductive examination, upon which the reduction was based. Finally, the record does not reflect actual and sustained improvement in the Veteran’s disability. While the RO determined that since medical evidence reflected that the Veteran’s nodule had resolved, he had no residual symptoms, the evidence of record includes the Veteran’s hearing testimony, which reflects his reports that he continued to get urinary and kidney infections frequently as well as leakage after urination. He required the use of absorbent material that he needed to change at least twice a day. The Veteran also testified that he had trouble urinating which required medication for treatment. Therefore, the RO has not sufficiently demonstrated that the Veteran's disability has improved and a reduction on this basis without a demonstration of actual improvement is not permissible. 38 C.F.R. § 3.105. Accordingly, the action to reduce the disability rating for the Veteran's service-connected nodule of upper pole of left testicle is void, and the 20 percent rating is restored as though the reduction had not occurred. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Claim Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran’s left testicle disability has been rate under Diagnostic Code 7529, which pertains to benign neoplasms of the genitourinary system and directs that any impairment should be rated as voiding dysfunction or renal dysfunction, whichever is predominant. The Board has restored his 20 percent rating for the entire appeals period herein. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. See 38 C.F.R. § 4.115a. Under the voiding dysfunction criteria set forth in 38 C.F.R. § 4.115a, the disability is to be rated as a particular condition as urine leakage, frequency, or obstructed voiding. For urinary leakage, a 20 percent evaluation is assigned for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted for impairment that requires the wearing of absorbent materials which must be changed two to four times per day. For urinary frequency, a 20 percent rating is warranted for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A maximum 40 percent rating is warranted for a daytime voiding interval less than one hour, or awakening to void five or more times per night. For obstructed voiding, a maximum 30 percent rating is warranted for obstructed voiding manifested by urinary retention requiring intermittent or continuous catheterization. Renal dysfunction manifested by constant or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 warrants a 30 percent evaluation. 38 C.F.R. § 4.115a. At his June 2010 examination, the Veteran reported urgency, hesitancy/difficulty starting stream, a weak or intermittent stream, dysuria, dribbling, and straining to urinate. He voided during the day every one to two hours and twice during the night. He had no urinary leakage or retention, and no history of renal dysfunction. At his May 2013 examination, the Veteran denied hematuria, nocturia, dysuria, urinary frequency, or incontinence. The Veteran did not have any kidney infections or dysfunction. At his hearing, the Veteran contended that his service-connected disability had not worsened beyond the criteria contemplated for a 20 percent disability rating. He reported that he had frequent urinary and kidney infections as well as leakage after urination requiring the use of absorbent material. At time he had trouble urinating which was treated with medication. He needed to urinate sometimes three times in the night. The Board finds that a higher disability rating for the Veteran’s service-connected nodule of upper pole of left testicle does not warrant a higher disability rating. While the Veteran reported that he has kidney infections, the evidence of record does not show that his service-connected disability has caused kidney dysfunction as contemplated in the rating criteria. In addition, the evidence does not reflect that any urinary retention experienced by the Veteran necessitates catheterization. He has not reported daytime voiding more than one hour and has indicated that he urinates at most three times during the night. The evidence would need to reflect that he needs to urinate five or more times per night to warrant a higher rating. While the Veteran has reported urinary leaking that requires absorbent material, the overall evidence does not support a finding that the Veteran must consistently change these materials two to four times per day. Significantly, the Veteran himself has asserted that his disability has not worsened such that it warrants a rating in excess of 20 percent. (Continued on the next page)   As the evidence of record does not support a higher rating, the Veteran’s claim is denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith