Citation Nr: 18157415 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-00 144 DATE: December 12, 2018 ORDER The reduction of the 100 percent rating for the Veteran’s service-connected prostate cancer, effective as of August 1, 2015, was proper. REMANDED The claim of entitlement to a disability rating in excess of 40 percent for residuals of prostate cancer, from August 1, 2015, is remanded. The claim of entitlement to an initial compensable disability rating for erectile dysfunction is remanded. FINDINGS OF FACT 1. In a February 2015 rating decision, the local Regional Office (RO) proposed to reduce the disability rating for prostate cancer from 100 percent disabling to 40 percent disabling. 2. In a May 2015 rating decision, the RO implemented the proposed reduction in the disability rating for prostate cancer, effective as of August 1, 2015, and was made in compliance with applicable due process laws and regulations. 3. The medical evidence at the time of the reduction in the disability rating demonstrated improvement in the Veteran’s service-connected prostate cancer, as the condition had been in remission since 2014. CONCLUSION OF LAW The reduction of the 100 percent rating for the Veteran’s service-connected prostate cancer, effective as of August 1, 2015, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.105(e), 3.321(b)(1), 3.343(a), 3.344, 4.1-4.7, 4.73, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Army from November 1967 to April 1974. The Veteran received the Vietnam Service Medal and the Vietnam Campaign Medal, among other commendations. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in a May 2015 rating decision, the RO decreased the evaluation assigned for prostate cancer from 100 percent to 40 percent, effective as of August 1, 2015. The Board notes that while the Veteran has challenged the propriety of the initial rating reduction, he has also contested the adequacy of the 40 percent evaluation assigned subsequent to the reduction, which is a separate matter. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (rating reduction claims are separate from increased ratings claims). The Board notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show, that his underlying disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. As such, the issue of entitlement to a TDIU is not before the Board at this time, and no further action is required. Rating Reduction The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In this case, service connection for prostate cancer was established in a September 2014 rating decision, in which the RO assigned a 100 percent rating, effective as of April 11, 2014. By way of a February 2015 rating decision, the Veteran was notified of the proposed reduction in his service-connected prostate cancer and associated correspondence dated in that same month. The actual reduction was subsequently effectuated by a May 2015 rating decision with an effective date of August 1, 2015. Therefore, it appears that proper procedures were followed in reducing the assigned rating for this disability. The Board initially notes that a rating reduction such as in the current appeal, which involves a Diagnostic Code with a temporal nature, is not governed by the provisions of 38 C.F.R. § 3.344 regarding stabilized ratings (i.e., ratings that have been in effect for five years or more) even if the 100 percent rating had been in effect for five years. See Rossiello v. Principi, 3 Vet. App. 430, 433 (1992) (refusing to reinstate the veteran’s 100 percent disability rating under a Diagnostic Code with a two-year temporal requirement where the “rating ceased to exist two years ‘following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure,’” and there was no evidence of local recurrence or metastases). The Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. Under this code, a 100 percent rating is warranted for malignant neoplasms, and, 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 six 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). As in this case, if there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. In short, a 100 percent rating is warranted for cases of active disease process and treatment, and for a period of at least six months following the cessation of such. Here, the record reflects the Veteran’s prostate cancer has been in remission since 2014, and that he has not received active treatment for such since that period. In pertinent part, the September 2014 and January 2015 VA examinations both found that the Veteran’s prostate cancer was in remission. Both of the examination reports indicate that the Veteran underwent a prostatectomy in August 2014. The January 2015 VA examination report shows that the Veteran was admitted to the hospital in November 2014 for left lymphocele and an interventional radiology drainage tube replacement; thus, not due to reoccurrence of his prostate cancer. The examiner noted that following the November 2014 procedure, the Veteran seemed recovered from the surgical complication and also noted that his post-operative PSA level was less than 0.03. The January 2015 VA examination report further reflects that treatment for the Veteran’s prostate cancer was completed after the August 2014 prostatectomy, and that the Veteran was in watchful waiting status for possible reoccurrence. Thus, the Board finds that active treatment was completed in 2014. Moreover, this is consistent with the other evidence of record, to include the VA medical treatment records. In view of the fact that the Veteran’s prostate cancer has been in remission, and he has not received active treatment during the pendency of this case, the Board finds that the reduction of the 100 percent rating for the Veteran’s service-connected prostate cancer, effective as of August 1, 2015, was proper. Therefore, the benefit sought on appeal with respect to this reduction must be denied. Accordingly, the Board finds that the preponderance of the evidence supported the reduction in rating and that the rating reduction was procedurally proper. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he is entitled to increased disability ratings for residuals of his service-connected prostate cancer, as well as his service-connected erectile dysfunction disability. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). The record reflects that the Veteran was most recently afforded a VA examination for his prostate cancer in January 2015, at which time, he was also evaluated for erectile dysfunction – over three years ago. When a claimant alleges that his or her service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As regards to his increased rating claim for residuals of prostate cancer, in his December 2016 substantive appeal (VA Form 9), the Veteran stated that he needed to change absorbent padding more than six time per day. He further stated that he woke up six or more times per night to void his bladder. Thus, the Veteran asserts that his condition has worsened. Turning to his increased rating claim for erectile dysfunction, the Veteran filed a separate substantive appeal (VA Form 9) in December 2016, wherein he stated that following his initial prescribed medication, he has been given alternative courses of treatment, including a referral to an erectile dysfunction class, use of a pump, and a different prescribed medication. Thus, based on his statements, the Veteran suggests that his condition has worsened. Therefore, in light of the foregoing, a more contemporaneous examination is warranted for both the Veteran’s residuals of his service-connected prostate cancer, as well as his erectile dysfunction disability, in order to ensure that the record reflects the current severity of each disability. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The Board notes that the most recent VA medical records associated with the claims file are from 2014. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his residuals of prostate cancer and his erectile dysfunction disability. The examination report should also show consideration of the Veteran’s documented medical history and assertions/complaints. All indicated studies, should be completed, and all clinical findings reported in detail. The examiner is requested to comment on the severity of the Veteran’s residuals of his service-connected prostate cancer and his erectile dysfunction disability throughout the rating period. The examiner should discuss the effect of each disability on his occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel