Citation Nr: 18157927 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-42 554 DATE: December 13, 2018 ORDER The reduction of the 100 percent disability rating for prostate cancer effective August 31, 2015 was proper; restoration of the 100 percent rating for prostate cancer is denied. A 60 percent rating for prostate cancer residuals beginning August 31, 2015 to October 1, 2015 is granted. An increased rating greater than 60 percent for prostate cancer residuals beginning October 1, 2015 is denied. FINDINGS OF FACT 1. A July 2015 rating decision reduced the disability rating for the Veteran’s service-connected prostate cancer from 100 percent to 20 percent, effective August 31, 2015. 2. A February 2017 rating decision increased the rating for prostate cancer residuals from 20 percent to 60 percent, effective October 1, 2015. 3. As of August 31, 2015, the 100 percent disability rating for prostate cancer had been in effect for more than five years. 4. At the time of the rating reduction, prostate cancer was inactive with no local recurrence or metastasis, and voiding dysfunction was the predominant residual disability. 5. Beginning August 31, 2015, the Veteran’s prostate cancer residuals were manifested by voiding dysfunction requiring absorbent materials to be changed more than four times a day. CONCLUSIONS OF LAW 1. The rating reduction for prostate cancer was proper, and restoration of a 100 percent disability rating, effective from August 31, 2015, is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.115b, Diagnostic Code 7528. 2. Resolving reasonable doubt in favor of the Veteran, for the period beginning August 31, 2015 to October 1, 2015, the criteria for a 60 percent rating for prostate cancer residuals have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. 3. For the period beginning October 1, 2015, the criteria for a disability rating higher than 60 percent for prostate cancer residuals are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1970. Entitlement to a higher rating for prostate cancer. As a threshold matter, the Board notes an SSOC must be furnished to the Veteran and his representative when additional pertinent evidence is received after a previous SOC or SSOC has been issued. 38 C.F.R. § 19.31. In this case, an SSOC was issued in August 2017; however, after its issuance, VA treatment records were added to the claims file for the adjudication of other claims for which there is not an automatic waiver of initial AOJ consideration. On review, the Board finds the treatment records pertaining to the Veteran’s prostate cancer are duplicative and show ongoing treatment and contentions that remain the same as those established in other records reviewed by the RO; therefore, the evidence would not materially alter the outcome of the case. As such, the Board finds that remand for initial AOJ review of this evidence is not necessary, and there is no prejudice to the Veteran in proceeding with adjudication of the case. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Rating Reductions A rating reduction must be based upon review of the entire history of the Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). VA must 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 the improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Id. Prior to reducing a veteran’s disability rating, VA is required to comply with pertinent VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e) (2018). In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105 (i)(1) (2018). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (2018). Rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. Once the five-year requirement of 38 C.F.R. § 3.344 has been satisfied, a reduction of the pertinent rating percentages can only be effectuated if the reduction complies with the provisions of 38 C.F.R. § 3.344 (a). The reduction can be justified only if there is a showing by a preponderance of the evidence that the rating reduction is warranted. Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, the Court requires that adjudicators must: (1) review the entire record of examinations and medical and industrial history to ascertain whether the recent examination(s) on which the reduction was based were full and complete; (2) decline to use examinations which are less full and complete than those on which payments were authorized or continued; (3) not reduce an evaluation except in cases where all the evidence clearly warrants a finding of material improvement. In addition, where material improvement in the physical condition is clearly shown, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Brown, 5 Vet. App. at 419-20 (1993). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Under 38 C.F.R. § 4.115b, Diagnostic Code 7528, a 100 percent rating is assigned for malignant neoplasms of the genitourinary system. The Note following Diagnostic Code (DC) 7528 provides that 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). 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. In this case, the record does not show, nor does the appellant contend, that his prostate cancer residuals include renal dysfunction or urinary tract infections. Thus, his prostate cancer residuals are appropriately rated under the criteria for evaluating voiding dysfunction. Under the criteria for rating voiding dysfunction, the particular condition is to be rated as urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a (2018). For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a maximum 60 percent rating is assigned. Where the disability requires the wearing of absorbent materials which must be changed 2 to 4 times per day, a 40 percent evaluation is warranted. For a disability which requires the wearing of absorbent materials which must be changed less than 2 times per day, a 20 percent rating is to be assigned. 38 C.F.R. § 4.115a. Urinary frequency is rated as follows: With daytime voiding interval less than one hour, or; awakening to void five or more times per night, a maximum 40 percent rating is warranted. Daytime voiding interval between one and two hours, or; awakening to void three to four times per night is commensurate with a 20 percent evaluation. For a daytime voiding interval between two and three hours, or awakening to void two times per night, a 10 percent rating is assigned. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Applying the facts in this case to the legal criteria set forth above, the Board finds that the reduction, which is based on the regulation as to this type of disability was proper. As a preliminary matter, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105 (e) prior to effectuating the appropriate rating of the Veteran’s disability rating. The RO issued a letter in May 2013 advising the appellant of the proposed reduction, his right to present additional evidence within 60 days of receipt of the letter, and his right to request a hearing. The July 2015 rating decision effectuating the reduction was not issued until the appropriate time period had elapsed, and the effective date of the new rating was in accordance with applicable criteria. Therefore, the Board finds that the requirements of 38 C.F.R. § 3.105 (e) were met. With regard to whether the reduction was proper, the Board notes that at the time of the July 2015 rating decision, the 100 percent rating for the Veteran’s service-connected prostate cancer had been in effect since December 28, 2009, which was a period of more than five years. Thus, the provisions of 38 C.F.R. § 3.344 (a), which apply to evaluations in effect for more than five years, are for application in this case. Factual background shows that the Veteran was diagnosed with prostate cancer in December 2009 and subsequently had a radical prostatectomy in March 2010. The Veteran was service-connected for said condition in a February 2010 rating decision and was assigned a 100 percent rating effective December 28, 2009. As explained above, the Veteran’s diagnosed prostate cancer is considered totally disabling; however, the condition is subject to a VA examination six months after the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Based on the Note to Diagnostic Code 7528 In this case, the Board finds that improvement of the prostate cancer has been demonstrated, and that the improvement will be maintained under the ordinary conditions of life and work; therefore, the rating reduction was proper and the criteria for restoration of a 100 percent rating for prostate cancer, effective August 31, 2015, have not been met. The evidence shows that during the Veteran’s June 2012 VA examination, the Veteran’s prostate cancer was determined to be in remission. The Veteran reported urinary frequency manifested by daytime voiding intervals between 1 and 2 hours, and awakening to void three to four times per night. Additionally, in a September 2011 primary care note, the examiner noted the Veteran’s PSA was negligible, and the Veteran reported that he is still having incontinence but it is now considered “dripping,” and that he is getting by without full depends. Because prostate cancer was inactive with no local recurrence or metastasis, and voiding dysfunction was the predominant residual disability, the AOJ appropriately reduced the Veteran’s rating, thus, assigning a 20 percent schedular disability rating. The pertinent findings regarding the Veteran’s prostate cancer and its residuals demonstrated at the time of the rating reduction are consistent with the post-reduction evidence which similarly show sustained improvement of his service-connected prostate cancer. For example, in his November 2016 VA examination, and June 2017 VA examination, the Veteran’s prostate cancer was noted to be in remission. Additionally, VA treatment records show that the Veteran’s prostate cancer remained in remission as evidenced in a March 2017 treatment note where his PSA was noted as “good” and less than .5. Further, in a May 2018 treatment note, the examiner noted that the Veteran’s PSA has been undetectable since his operation. Therefore, under these circumstances, there is no evidence of record that would justify the continuance of the initially assigned 100 percent schedular rating under Diagnostic Code 7528. Accordingly, the preponderance of the evidence is against restoration of a 100 percent schedular rating for residuals of prostate cancer. The Board notes that based upon the Veteran’s November 2015 Notice of Disagreement (NOD) and November 2016 VA examination, the Veteran’s 20 percent rating was increased to 60 percent disabling as of October 1, 2015. In his NOD, the Veteran did not contest the reduction of his 100 percent rating; but rather, contended that a rating greater than 20 percent was warranted. In doing so, the Veteran reported that he changes his absorbent materials 4 to 5 times per day, and that he wakes more than five times a night to void. This report was confirmed in his November 2016 VA examination. As a result, the Veteran was awarded a 60 percent disability rating, effective October 1, 2015. However, given the Veteran’s November 2015 statements reported in his NOD and subsequent November 2016 examination as a basis for an increase to 60 percent disabling, the Board resolves reasonable doubt in favor of the Veteran and finds that the Veteran is entitled to a 60 percent rating as of August 31, 2015. The Veteran is not entitled to a rating greater than 60 percent as the Veteran is in receipt of the maximum disability rating under Diagnostic Code 7528 for voiding dysfunction; therefore, a rating greater than 60 percent is not available. 38 C.F.R. § 4.115a. While disability ratings greater than 60 percent are available for prostate cancer residuals when renal dysfunction predominates, voiding dysfunction has been the predominant residual symptom in this case for the entire initial rating period, and there is no evidence that the Veteran has renal dysfunction. Id. The Board has also considered the Veteran’s contentions and recognizes that he continues to experience significant residuals of his prostate cancer, including voiding dysfunction, impotence, and incontinence. In that regard, in addition to the 60 percent rating for voiding dysfunction discussed above, the record shows that service connection has also been granted for erectile dysfunction, and the Veteran has been receiving special monthly compensation based on the loss of use of a creative organ since March 2010. The Board notes that these ratings reflect VA’s recognition of the severity of his service-connected prostate cancer residuals. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against restoration of a 100 percent schedular rating for residuals of prostate cancer; however, as of August 31, 2015, the Veteran is entitled to a 60 percent rating, but no higher. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel