Citation Nr: 18156652 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-27 449 DATE: December 10, 2018 ORDER The reduction in the Veteran’s disability rating for prostate carcinoma, status-post prostatectomy, radiation, and hormone therapy (prostate cancer) from 100 percent disabling to a noncompensable disability rating, effective January 1, 2014, was proper; the claim for restoration is denied. FINDINGS OF FACT 1. An October 2013 rating decision reduced the disability rating for the Veteran’s service-connected prostate cancer disability from 100 percent to noncompensable (zero percent), effective January 1, 2014. 2. As of January 1, 2014, the 100 percent disability rating for the Veteran’s service-connected prostate cancer disability had been in effect for less than five years. 3. Evidence at the time of the reduction demonstrated an overall improvement in the prostate cancer disability because 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, he did not have any local recurrence or metastasis of his prostate cancer. CONCLUSION OF LAW The criteria for the reduction in the Veteran’s disability rating for service-connected prostate cancer from 100 percent disabling to a noncompensable rating have been met as of January 1, 2014. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.44, 3.105(e), (i), 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from January 1968 to February 1971. The issue of entitlement to an increased disability rating for the prostate cancer has been raised by the record in a November 2014 statement, but has not been initially adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, in addition to disagreeing with the reduction of the disability rating for prostate cancer, the Veteran asserted that his prostate cancer symptoms were worse than those contemplated by the zero percent rating assigned for this disability. An increased-rating claim is different from a rating-reduction claim since, in an increased-rating claim, the claimant has the burden of showing the disability at issue has worsened, whereas in a rating-reduction claim, VA has the burden of showing the disability at issue instead has improved. If a claim is appealed to the Board on the basis of a reduction only, there is no need to also discuss whether a rating in excess of the reduction is warranted because the pleadings and burdens of proof differ depending on whether the claim involves a requested increase or disputed reduction. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Because only the propriety of the reduction is at issue in this appeal, the Board does not have jurisdiction over the additional issue of a rating increase for prostate cancer, and the matter is referred to the AOJ for appropriate action and additional development. 38 C.F.R. § 19.9(b) (2017). The Veteran contends that the 100 percent rating for his prostate cancer disability should not have been reduced to a noncompensable rating, effective January 1, 2014. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Initially, the Board notes that where the reduction in 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 and setting forth all material facts and reasons must be prepared. An appellant must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and, will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. An appellant must also be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If additional evidence is not received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the appellant expires. See 38 C.F.R. § 3.105(e). A June 2013 letter provided the Veteran with appropriate notice of a proposed reduction in the prostate cancer disability rating. During the ensuing 60-day period, the Veteran submitted a June 2013 statement disagreeing with the proposed reduction; however, he did not request a predetermination hearing. In an October 2013 rating decision, the AOJ effectuated the proposed reduction, effective January 1, 2014. Based upon these facts, the Board finds that the AOJ’s reduction of the Veteran’s prostate cancer disability from 100 percent disabling to a noncompensable disability rating was procedurally in accordance with the notice provisions under 38 C.F.R. § 3.105. 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). Where, however, 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. §§ 3.343(a), 3.344(c). The Veteran’s 100 percent rating for his prostate cancer disability had been in effect for less than a five-year period at the time the disability was evaluated and the AOJ reduced the rating to noncompensable. Specifically, the 100 percent disability rating became effective as of August 31, 2009. In an October 2013 rating decision, the AOJ determined that recent evidence showed that the Veteran’s disability warranted a noncompensable disability rating and the AOJ reduced the disability, effective January 1, 2014. Nevertheless, the U.S. Court of Appeals for Veterans Claims (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. The Court has stated that 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). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Id. at 421. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. When an AOJ reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). As noted above, VA has the burden of establishing that the disability has improved in a rating reduction case by a preponderance of the evidence. See Kitchens v. Brown, 7 Vet. App. 320 (1995). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prostate cancer is evaluated under 38 C.F.R. § 4.115b, DC 7528, which covers malignant neoplasms of the genitourinary system and provides for an initial 100 percent disability rating. The 100 percent disability rating is provided until at least six months following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, at which time a veteran is to be provided a VA examination. 38 C.F.R. § 4.115b, DC 7528, Note. Based upon that or any subsequent VA examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. § 3.105(e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals as a voiding dysfunction or a renal dysfunction, whichever is predominant. Id. The Board finds that the evidence at the time of the reduction demonstrated an overall improvement in the prostate cancer disability, as the evidence did 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, in the mandatory September 2013 VA examination, the examiner noted that the Veteran underwent a prostatectomy in December 2003, during which his prostate specific antigen (PSA) dropped from 62.4 to 0.2. However, the examiner noted that the Veteran continued to be treated for prostate cancer after the prostatectomy. For example, he was seen in July 2010 by a non-VA urology department because his PSA had slowly been rising. The examiner noted that the Veteran continued to be observed for his symptoms at a private hospital and that he was last evaluated in May 2013. The Veteran reported that he had progressive general weakness and fatigue as a result of his previous prostate cancer treatment. The examiner specifically noted that the Veteran’s prostate cancer was in remission and that his treatment was complete, but that he was currently in watchful waiting status. The examiner noted that the Veteran did not have any voiding dysfunction or urinary tract or kidney infections, but he did have erectile dysfunction (ED) as a result of the radical prostatectomy and course of radiation treatment. The Board notes that the Veteran’s ED disorder is service connected and the rating for this disability is not currently before the Board. The examiner noted that apart from ED, the Veteran did not have any additional complications of his prostate cancer. The examiner also noted that the Veteran’s PSA was 0.55 in March 2012, and 0.65 in May 2013, and 0.39 in September 2013. The Board notes that the Veteran has alleged in numerous statements throughout the appeal, including in his November 2013 notice of disagreement (NOD) and July 2015 substantive appeal to the Board (VA Form 9), that although his prostate cancer was not currently active, he had symptoms due to or as a result of his prostate cancer or its treatment that entitled him to a compensable disability rating for this disability. For example, he asserted in the November 2013 NOD that he became easily winded and had shortness of breath upon exertion due to his chemotherapy treatment. He also contended that he had a weak urinary stream and had to void two to three times per night due to his residuals of prostate cancer in the July 2015 VA Form 9. He reported such symptoms to several VA doctors, including to a VA primary care provider in May 2014. However, as noted above, the claim of an increased rating for the Veteran’s prostate cancer has not been perfected to the Board, and the Board does not have jurisdiction to adjudicate the claim for increase at this time. The Board emphasizes that, in accordance with the provisions of 38 C.F.R. § 4.115b, DC 7528, the AOJ correctly provided the Veteran with a mandatory VA examination in September 2013. The Veteran reported residuals of ED during the examination, and has reported urinary frequency, obstructed voiding, shortness of breath, and overall weakness following January 1, 2014. However, the evidence does not show that the Veteran underwent further surgical procedure, radiation, chemotherapy, or other therapeutic procedure after January 1, 2014, due to his prostate cancer. In fact, the Veteran agreed in the November 2013 NOD and July 2015 VA Form 9 that his prostate cancer was not currently active and that he was cancer free. Therefore, given the lack of recurrence or metastasis (spreading) of the prostate cancer on or after January 1, 2014, the initial 100 percent rating for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b, DC 7528; Rossiello v. Principi, 3 Vet. App. 430 (1992). As the preponderance of the evidence demonstrates that the Veteran’s prostate cancer disability had improved by January 1, 2014, the benefit of the doubt doctrine is not applicable, and the claim for restoration must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.344, 4.3, Gilbert, 1 Vet. App. at 55. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel