Citation Nr: 18156630 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-45 506 DATE: December 10, 2018 ORDER The discontinuance of the 100 percent evaluation for prostate cancer with post-radiation dysuria, effective August 1, 2015, was proper. REMANDED An evaluation in excess of 20 percent for residuals of prostate cancer with post-radiation dysuria for the period beginning August 1, 2015, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The discontinuance of the 100 percent evaluation for prostate cancer with post-radiation dysuria is not a formal rating reduction in this case, as the “reduction” was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528. 2. The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed in this case. 3. Following August 1, 2015, the Veteran did not continue to receive any surgical, x-ray, or antineoplastic chemotherapy; did not have any continued active malignancy of his genitourinary system; and did not have any local recurrence or metastasis of his prostate cancer, such that continued application of a 100 percent evaluation for residuals of prostate cancer were appropriate under 38 C.F.R. § 4.115b, Diagnostic Code 7528. CONCLUSIONS OF LAW The discontinuance of the 100 percent evaluation, effective August 1, 2015, for prostate cancer with post-radiation dysuria was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1968 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which decreased the Veteran’s 100 percent evaluation for prostate cancer disability to a 20 percent evaluation, effective August 1, 2015. The Veteran has timely appealed both the propriety of the reduction as well as the assigned evaluation for his prostate cancer disability in this case. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2016. The Board reflects that the Agency of Original Jurisdiction (AOJ) continued the Veteran’s 100 percent evaluation for his prostate cancer disability in an August 2014 rating decision. Later that month, however, the Veteran filed an Application for TDIU, VA Form 21-8940; it is from that claim for TDIU that the present prostate cancer claims stem. As this claim stems from an initial TDIU claim, and given that TDIU is part and parcel of the claim for increase before the Board at this time, the Board has jurisdiction over the TDIU claim at this time, even though the Veteran did not properly appeal that issue when it was denied in the February 2015 rating decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s prostate cancer has been evaluated as 100 percent disabling under Diagnostic Code 7528 from August 30, 2013 through July 31, 2015, at which time it was evaluated as 20 percent disabling, effective August 1, 2015 based on the residuals of that cancer. Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system (i.e., prostate cancer) is assigned a 100 percent evaluation. However, a Note under that Diagnostic Code, 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, Diagnostic Code 7528 and Note. In this case, the Veteran was assigned a 100 percent evaluation for his prostate cancer in a November 2013 rating decision, which was continued in an August 2014 rating decision following mandatory evaluation in an August 2014 VA examination; that examination indicated that the Veteran had completed ADT therapy in April 2014, and therefore it was not yet 6 months after cessation of treatment. The Veteran, however, filed an Application for TDIU, VA Form 21-8940, in August 2014, which prompted re-examination in January 2015. Based on those examination findings, in a February 2015 rating decision, the AOJ proposed to reduce the Veteran’s prostate cancer evaluation from 100 percent to 20 percent disabling, as there was no longer any evidence of active malignancy but there was evidence of voiding dysfunction. The Veteran was informed of that proposed reduction and of his rights to a pre-determination hearing and to submit additional evidence in a February 2015 letter. Initially, the Board has considered whether the claim at issue would be most appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, the Board does not find that these provisions are applicable in the present case. This is 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 AOJ’s action was not a “rating reduction,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (where the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code involved contained a temporal element for that 100 percent rating). In the present case, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, referable to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In other words, this is in essence a staged rating case, but it is not a formal reduction case because of the clear temporal element of Diagnostic Code 7528. The rating reduction in this case was procedural in nature and by operation of law. The Board only has to 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. As discussed further below, the Board finds that the procedural requirements were properly followed in this case and the “reduction” was by operation of law under Diagnostic Code 7528 in this case. In this case, the Veteran was in receipt of compensation benefits at the 100 percent rate from August 2013 through July 2015, at which time his compensation benefits was reduced to 40 percent as a result of his continued evaluation for his service-connected psychiatric, prostate cancer residuals, tinnitus, hearing loss, and erectile dysfunction disabilities. Consequently, the provisions of 38 C.F.R. § 3.105(e) are applicable in the instant case. The Board finds that the AOJ satisfied the due process notification requirements under 38 C.F.R. § 3.105 in this case. Specifically, the Veteran underwent a VA examination of his prostate cancer residuals in August 2014 and January 2015. In a February 2015 rating decision, the Veteran’s 100 percent evaluation for that disability was proposed to be reduced to 20 percent disabling on the basis of the January 2015 examination. In a February 2015 letter, the Veteran was informed of his rights, including to a predetermination hearing and to submit additional evidence. The Veteran did not request a hearing, although he did submit additional evidence including records from his commercial driving examination, and a Notice of Disagreement, VA Form 21-0958, which the Veteran was informed was premature in a March 2015 letter. After considering the additional evidence, the AOJ finalized the discontinuance of the Veteran’s 100 percent evaluation for prostate cancer residuals in a May 2015 rating decision, effective August 1, 2015. The effective date of the reduction, August 1, 2015, was effective on the last day of the month after expiration of the 60-day period from the date of notice of the May 2015 final rating action, as set forth in the applicable VA regulation. In light of these facts, the Board finds that the particularized procedure for discontinuing the Veteran’s 100 percent evaluation for his prostate cancer was appropriately and adequately completed in this case. See 38 C.F.R. § 3.105(e). Turning to the question as to whether the Veteran meets the criteria for continued evaluation under Diagnostic Code 7528 for the period beginning August 1, 2015, the Board finds that the evidence in this case does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer. Specifically, as noted in the January 2015 VA examination, the Veteran’s prostate cancer was in remission at that time following completion of external beam radiation on March 20, 2014, and antiandrogen therapy (ADT) on April 28, 2014. The Bo Veteran’s prostate cancer was shown to be in remission throughout his VA treatment records as well as during examination in April 2018. Therefore, the discontinuance of the Veteran’s 100 percent evaluation for his prostate cancer was proper. REASONS FOR REMAND As to the increased evaluation claim for prostate cancer residuals, the Veteran participated in a hearing before the undersigned in June 2016, during which he indicated that there was a potential worsening of his prostate cancer residuals. However, during the pendency of adjudication at the Board, the Veteran filed a claim for increased evaluation in March 2018 at the AOJ related to his prostate cancer residuals; instead of deferring action on that claim, however, the AOJ obtained a VA examination related to the Veteran’s prostate cancer residuals in April 2018. As of this time, the AOJ has not reviewed that evidence in the first instance, nor has the Veteran or representative submitted a waiver of original jurisdiction related to that evidence in this case. Consequently, as such evidence is not subject to the automatic waiver provisions, the Board must remand the increased evaluation claim for prostate cancer residuals in order for the AOJ to review that evidence in the first instance in this case. The TDIU claim in this case is intertwined with the claim for increased evaluation for prostate cancer residuals and therefore it must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Nevertheless, although TDIU was denied in a February 2015 rating decision, additional evidence has been received since that decision on appeal that is pertinent to the TDIU claim on appeal that has not been considered in the first instance by the AOJ in this case, particularly the April 2018 VA examinations of the Veteran’s service-connected disabilities. A remand is therefore necessary in order for the AOJ to consider this evidence in the first instance. On remand, the Board any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Des Moines VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran’s claims for an evaluation in excess of 20 percent for residuals of prostate cancer with post-radiation dysuria for the period beginning August 1, 2015, and entitlement to TDIU for the period beginning August 1, 2015. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel