Citation Nr: 18156003 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-45 081 DATE: December 6, 2018 ORDER The reduction in the disability rating for the Veteran’s prostate cancer from 100 percent to 20 percent, effective December 1, 2012, was proper; the appeal is denied. FINDINGS OF FACT 1. Following a VA examination, a July 2012 rating decision proposed to reduce (from 100 to 20 percent) the rating for the Veteran’s prostate cancer; he was notified of the proposal by a July 2012 notice letter; the reduction was implemented (effective December 1, 2012) by a September 2012 rating decision. 2. By September 2012, there had been no recurrence of prostate cancer shown, and treatment had been completed more than six months earlier; the status post prostatectomy was manifested by urinary incontinence, with the regular use of absorbent materials that needed to be changed less than twice a day, and daytime voiding intervals every one to two to three hours, with nighttime voiding occurring three to four times per night. CONCLUSION OF LAW The reduction of the rating for prostate cancer from 100 percent to 20 percent effective December 1, 2012 was proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.115a, 4.115b, Diagnostic Code 7528 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 1. Propriety of the reduction of evaluation of prostate cancer from 100 percent to 20 percent. The Veteran seeks the restoration of a 100 percent rating for service-connected prostate cancer, arguing that the RO’s September 2012 reduction of the rating was improper. Initially, the Board notes that the claim at issue is not a formal reduction under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344 because 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). In short, in this case, the Board must only 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 Diagnostic Code 7528. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payment should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. In this case, service connection was granted for prostate cancer in a February 2006 rating decision and a 100 percent rating was assigned effective August 15, 2005. In a July 2012 rating decision, the RO proposed to reduce the rating for prostate cancer to 20 percent because there was no evidence of active cancer to warrant a continued 100 percent evaluation. The Veteran was notified of the proposed reduction in a July 2012 notice letter. The reduction in rating was effectuated in a September 2012 rating decision, effective December 1, 2012. The Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were properly followed in that the Veteran was provided adequate notice and the opportunity to respond and request a hearing. Thus, the Board turns to the question of whether the reduction was by operation of law under Diagnostic Code 7528. Prostate cancer is rated under Diagnostic Code 7528, which provides for a 100 percent rating upon diagnosis of malignancy and for 6 months following surgery, X-ray, chemotherapy, or other therapeutic procedure. 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 6 months. 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). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b. Here, the medical and lay evidence does not suggest that the Veteran has renal dysfunction due to prostate cancer. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Urinary incontinence requiring the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent rating. That which requires the wearing of absorbent materials which must be changed two to four times per day warrants a 40 percent rating. That which requires the wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent rating. 38 C.F.R. § 4.115a. Urinary frequency with a daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval of less than one hour or awakening to void five or more times per night warrants a 40 percent rating. Id. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent disability rating. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: Post void residuals greater than 150 cc.; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every two-to-three months, warrants a 10 percent disability rating. A noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one-to-two times per year. Id. The Veteran underwent VA examination in April 2012. At that time, the examiner confirmed the Veteran’s history of a prostate cancer diagnosis and noted that the Veteran had a prostatectomy in 2005. Pertinently, however, the examiner indicated that the status of the disease is not active, and in remission. Residual conditions were noted to include voiding dysfunction not requiring use of absorbent material; symptoms of urinary incontinency including daytime voiding intervals between one and two hours, and nighttime awakening to void three to four times. It was also noted that the Veteran had some hesitancy, recurrent urinary tract infections secondary to obstruction requiring long-term drug therapy, and erectile dysfunction, but no leakage. The Board notes that the Veteran is separately service connected for erectile dysfunction. Also associated with the record is a private disability benefits questionnaire dated in November 2012. The private provider confirmed that the Veteran’s prostate cancer was in a status of remission. Nevertheless, the Veteran was diagnosed with residual male incontinence, urinary frequency, and occasional cystitis. Residual complications of prostate cancer were noted to include urinary dysfunction causing daytime voiding between one and two hour intervals, and leakage requiring the use of absorbent materials that must be changed less than twice a day. No obstructed voiding was noted, though hesitancy was reported. The Veteran’s private medical records show that he was regularly examined since his 2005 prostatectomy for recurrence of the disease and associated symptoms. Notably, the medical record shows that the disease has remained inactive, and the lay statements as well as medical notes of record show it has not progressed and has remained stable. In May 2013 and October 2013 statements in support of his claim, the Veteran stated that after his prostate surgery in 2005, he was left with residuals including very frequent and unexpected need to urinate as well as bowel movements; frequent bladder spasm requiring prescription drug treatment; and some leakage of urine when sneezing, coughing or making sudden movements. Private urology records reflect that in regular visits since July 2012, the Veteran has been confirmed to have inactive prostate cancer. In July 2012, the urologist noted there has been no evidence of disease since prostatectomy seven years prior. Current symptoms included occasional dysuria, but with good response to prescription medication. In November 2012, the Veteran’s condition was assessed as stable. The Veteran reported intermittent pain. However, the provider noted that the Veteran was fully active and able to perform all normal activities. In December 2013, the Veteran was reported to be doing reasonably well. Mild stress urinary incontinence was reported, without the need for pads. In fact, the doctor indicated that the Veteran’s symptoms are improving. In December 2014, the Veteran was re-assessed. His status was noted to be stable. His PSA was reported as undetectable, and pertinently, it was noted that no further treatment was required for his prostate cancer. The provider did note that surveillance would be continued, and that symptoms of leaking with rare need for pads were present. The Board has also reviewed VA medical records. Significantly, VA providers reference the Veteran’s private medical care when addressing prostate cancer. Overall, based on the lay and medical evidence of record, the Board finds that the rating reduction for prostate cancer was proper by operation of law and that a 20 percent rating remains, based on the finding that the Veteran requires absorbent materials which must be changed less than two times per day, supporting a 20 percent rating. In addition, the record does not suggest and the Veteran has not argued that his prostate cancer residuals have significantly worsened. In fact, the Veteran’s medical record has consistently reflected that his prostate cancer residuals have been both stable and improving since 2012. As discussed, under Diagnostic Code 7528, on remission, if there is no local reoccurrence or metastasis, prostate cancer residuals shall be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Here, as noted above, there is no evidence of renal dysfunction at any time during the appeal period. The evidence shows since the reduction, the Veteran has not received treatment for active prostate cancer, and residuals are manifested by urinary leakage requiring the use of absorbent material which must be changed less than twice per day and, at worst, a daily voiding interval of between one and two hours and nighttime awakening to void three to four times. These residuals most closely approximate a 20 percent rating under Diagnostic Code 7528. Based on the evidence demonstrating that the Veteran’s prostate cancer is in remission, the Board concludes that discontinuance of the 100 percent rating was proper by operation of law and that the 20 percent rating was properly assigned under Diagnostic Code 7528, given that there is no indication in the record that the Veteran’s prostate cancer residuals require the use of an appliance or the wearing of absorbent materials which must be changed more than twice. There has further been no showing of urinary frequency with daytime voiding interval less than one hour; or, awakening to void five or more times per night; or, obstructed voiding with urinary retention requiring intermittent or continuous catheterization. In conclusion, the Board finds that the September 2012 reduction from 100 percent to 20 percent for the Veteran’s prostate cancer was proper. The Board has considered the benefit-of-the-doubt doctrine, but because the preponderance of the evidence is against the claim, that doctrine is not helpful to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel