Citation Nr: 18158130 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-18 247 DATE: December 14, 2018 ORDER The reduction in evaluation of adenocarcinoma of the prostate, status post prostatectomy, from 100 percent to 20 percent, effective October 1, 2013, was proper. FINDINGS OF FACT 1. The reduction of the Veteran’s rating from 100 percent to 20 percent for adenocarcinoma of the prostate, status post prostatectomy, resulted in a reduction of compensation payments being made to the Veteran. 2. The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed. 3. At the time of the July 2013 rating decision, the evidence of record showed that the Veteran had undergone a radical prostatectomy in 1994, that he exhibited no local reoccurrence or metastasis at time of his VA examination, and that his residuals were manifested by daytime voiding intervals of one to two hours and awakening to void 3 to 4 times per night; leakage or incontinence requiring the wearing of absorbent materials or the use of an appliance was not demonstrated. CONCLUSION OF LAW The reduction in the rating for prostate cancer from 100 percent to 20 percent, effective October 1, 2013, was proper. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105(e), 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to June 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). The Veteran testified at a DRO hearing in April 2014. In September 2018, the Veteran testified at a Board videoconference hearing before the undersigned. Copies of transcripts of those hearings have been associated with the claims file. The Board notes that during the April 2014 DRO hearing, the representative asserted clear and unmistakable error (CUE) in a June 1994 rating decision that granted service connection for a high PSA reading and prostate cancer and assigned an initial non-compensable rating. In this regard, the representative asserts the Veteran should have been service connected only for prostate cancer and that the later 100 percent disability rating should be effective the day following his separation from service. Prior to March 24, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2014); see also 38 C.F.R. § 3.1(p) (2018) (now providing that a “claim” must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). As such, as a CUE claim was raised during the April 2014 DRO hearing but has not been adjudicated by the agency of original jurisdiction (AOJ). That issue is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Accordingly, in the decision below, the Board is only addressing the propriety of the June 2013 rating reduction for the Veteran’s service-connected adenocarcinoma of the prostate, status post prostatectomy. Rating Reductions The Veteran seeks restoration of the 100 percent disability rating for his service-connected adenocarcinoma of the prostate, status post prostatectomy. He contends that the reduction of the evaluation from 100 percent to 20 percent was improper. A rating reduction is the result of a course of action taken by VA, and not a claim by the Veteran. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). 1. Due Process The Board notes that there are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60-days is allowed for response. The RO must notify the beneficiary that he or she will be given 60-days to present evidence to show that compensation payments should be continued at the present level. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). Furthermore, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, reduction notification procedures were required as the July 2013 rating decision that implemented the rating reduction changed the Veteran’s overall disability rating, which was reduced from 100 percent to 30 percent. The special procedural requirements outlined in 38 C.F.R. § 3.105(e) and (i) were therefore applicable in this case. The record includes a May 2012 rating decision that proposed reducing the rating of the Veteran’s prostate cancer from 100 percent disabling to 20 percent. The Veteran was notified of the proposed rating reduction in May 2012. The May 2012 notice enclosed the May 2012 rating decision that set forth all material facts and reasons for the proposed rating reduction. Additionally, the May 2012 notice properly notified the Veteran of the 60-day period to provide evidence, how to obtain a personal hearing in accordance with 38 C.F.R. § 3.105(i), and what evidence he could submit. Thus, the Board finds that VA has satisfied the specific procedural requirements applicable to the Veteran’s rating reduction. Therefore, the remaining question is the propriety of the reduction. 2. Legal Analysis 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; Greyzck v. West, 12 Vet. App. 288, 292 (1999). The criteria governing certain rating reductions for certain service-connected disabilities are found under 38 C.F.R. § 3.344. The provisions of 3.344(a) and (b) apply to ratings that have been continued for five years or more. At the time the reduction became effective, October 1, 2013, the 100 percent rating had been continuously in effect since March 17, 1994, a period of over eighteen years. However, the original June 1994 rating decision that granted service connection and assigned a 100 percent evaluation specifically noted that the rating was not considered permanent. Additionally, the provisions of 38 C.F.R. § 3.343 do not apply to a decrease in disability compensation under DC 7528 because the decrease is the product of compliance with that diagnostic code which provides for the cessation of the prostate cancer evaluation after a temporal period if there has been no local reoccurrence or metastasis, and for evaluation of prostate cancer residuals thereafter under a different diagnostic code. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). Disability ratings for prostate cancer are assigned pursuant to 38 C.F.R. § 4.115b, DC 7528, regarding malignant neoplasms of the genitourinary system. The rating schedule provides a 100 percent disability rating for the presence of malignant neoplasms of the genitourinary system. However, the Note states 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 § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. With specific regard to DC 7528, VA has no discretion to reduce or otherwise change a 100 percent disability rating during the six-month period following treatment for malignant neoplasms, and until a medical examination report supports such a change. Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). It is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date. Id. The phrase “the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure,” in DC 7528, refers to the cessation of treatment for the applicable malignant neoplasm of the genitourinary system. Thus, the 100 percent rating will end as of the date the veteran received final treatment for cancer, the cessation of treatment for the cancer itself, as opposed to treatment for residuals secondary to the cancer or further treatment required as a result of the treatment for the disease. Tatum v. Shinseki, 26 Vet. App. 443, 447-48 (2014) (also referred to as “Tatum II”). 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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO’s reduction was warranted. See Brown v. Brown, 5 Vet. App. 413; Kitchens v. Brown, 7 Vet. App. 320 (1995). The entire record must be reviewed. 38 C.F.R. §§ 4.1, 4.2. The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must further show that the disability has improved in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The claims file includes a March 1994 VA medical record noting a biopsy diagnosis for well differentiated adenocarcinoma. Another March 1994 medical record noted the Veteran would undergo a radical prostatectomy. In January 2012, letters sent to various addresses notified the Veteran that VA was required to periodically re-evaluate his disability and that a VA examination would be scheduled. Thereafter, the Veteran underwent a VA examination in March 2012. During that examination, the examiner noted a 1993 diagnosis for prostate cancer, that the Veteran underwent a radical prostatectomy in 1994, and that he had undergone annual DRE and PSA tests. The examiner noted that PSA levels were found undetectable within the past year and the Veteran’s prostate cancer was found to be in remission. The Veteran reported a voiding dysfunction that did not require the use of wearing absorbent material or appliance. The voiding dysfunction reportedly resulted in a daytime voiding interval between 1-2 hours and nighttime awakening to void 3-4 times. No signs or symptoms of obstructive voiding were found. The Veteran also reported erectile dysfunction which the examiner noted was etiologically related to the radical prostatectomy. The examination report noted that neither the penis or testes were examined per the Veteran’s request. A scar was also noted related to the prostatectomy which was not painful, unstable or covering an area greater than 39 square cm. The examiner noted no history of recurrent symptomatic urinary tract or kidney infections. In addition, the examiner found no other residual condition or complication secondary to the prostate cancer. The Veteran also underwent a VA male reproductive system examination in August 2012. The examiner noted a diagnosis for erectile dysfunction secondary to the Veteran’s radical prostatectomy. The Veteran was noted as taking continuous medication for this condition. The Veteran denied any current voiding dysfunction. The examiner noted no history of recurrent symptomatic urinary tract or kidney infection. The Veteran was noted as only able to achieve an erection sufficient for penetration and ejaculation with medication. An examination of the Veteran’s penis and testes was noted as not conducted per the Veteran’s request. During an April 2014 DRO hearing, the Veteran testified that he voided 3-4 times per night, and sometimes more, and at least once an hour during the day. The Veteran additionally testified that he had urinary leakage. The representative asserted that the August 2012 VA examination was inadequate as the examiner was a family practitioner and did not specialize in male reproductive organs. Finally, during a September 2018 Board hearing, the Veteran testified that he did not have any reoccurrence of his prostate cancer since the 1990’s. He further testified that he currently experienced residuals of prostate cancer including, erectile dysfunction and intermittent bladder leakage, although he did not require the use of absorbent materials. In addition, the Veteran testified that he voided three to four times per night and was constantly looking for the bathroom during the day. Upon consideration of the competent evidence of record and applicable law, the Board finds that the reduction of the Veteran’s prostate cancer from 100 percent was proper. Evidence at the time of the reduction did not show that there had been a local reoccurrence or metastasis of prostate cancer. A March 2012 VA examination report, some eighteen-years following the radical prostatectomy, documents the Veteran reportedly doing well with no evidence of recurrent prostate cancer. The examiner noted that the Veteran’s PSA level was undetectable within the past year and he was found to be in remission. The Veteran further testified that he did not have any reoccurrence of his prostate cancer since the 1990’s. The Board recognizes the representative’s assertion that the March 2012 VA examination report was inadequate because the examiner did not specialize in male reproductive organs. The Board finds this assertion without merit. Specifically, neither the Veteran nor his representative has offered an argument as to why the March 2012 examiner would not be qualified to provide the requested medical findings, other than to state that the examiner was a family practitioner. It is unclear what information this statement was based upon as the examination report only lists the examiner as a staff physician. In any event, the Board notes that VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician’s assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician’s assistant was competent to perform examination); Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses’ statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive). Further, the Board may assume a VA medical examiner is competent as part of the presumption of regularity that attaches to the actions of public officials. Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician’s qualifications during Board proceedings, absent a challenge by the Veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). There is nothing in the examination report to suggest that the examiner was not qualified through lack of education, training, or experience to render a VA examination of the Veteran’s reproductive system. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (holding that, in the absence of clear evidence to the contrary, VA medical examiners are presumed competent). Further, the Veteran’s representative has not provided any basis for the assertion that the examination should have been conducted by a specialist in male reproductive organs. As noted above, an examiner need only be “qualified through education, training, or experience to offer medical diagnoses, statements, or opinions,” and a specific specialist is not necessarily required. See Cox, 20 Vet. App. at 569. Finally, the Board notes that other than asserting that the March 2012 VA examination was inadequate, neither the Veteran nor the representative have asserted disagreement with the currently assigned ratings for his prostate cancer residuals. Instead, the Veteran and his representative have alternatively asserted CUE in the June 1994 rating decision that assigned an initial non-compensable rating, and have asserted entitlement to an initial total 100 percent disability. See April 2014 DRO Hearing transcript; January 2014 letter; January 2015 NOD; May 2015 VA Form 9; and September 2018 Board hearing transcript. Thereby, the Veteran and his representative have asserted that his assigned 100 percent disability rating is protected under 38 C.F.R. § 3.951(b). However, as noted above, a CUE claim is not currently before the Board. Therefore, based on evidence of record, the Board finds the rating reduction for prostate cancer, effective October 1, 2013, was proper by operation of law. As discussed, under DC 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, the evidence shows that since the reduction, the Veteran has not received treatment for active prostate cancer and residuals included urinary frequency manifested by a daytime voiding interval between one and two hours and awakening to void three to four times per night. In this regard, the Board recognizes the April 2014 DRO hearing which shows the Veteran testified that he voided 3-4 times per night, sometimes more. However, the March 2012 VA examination shows the Veteran did not report voiding more than 3-4 times per night and the August 2012 VA examination noted that the Veteran did not have any current voiding dysfunction. Moreover, during the September 2018 Board hearing the Veteran again testified that he voided only 3-4 times per night. There is no evidence of renal involvement. There is no evidence to the contrary. Accordingly, the Board finds that the residuals more nearly approximate a 20 percent rating. 38 C.F.R. § 4.115a. As such, the Board concludes that discontinuance of the 100 percent rating was proper by operation of law under DC 7528, and that the 20 percent rating was properly assigned following the discontinuance. Accordingly, as of October 1, 2013, a reduction of the rating for prostate cancer from 100 percent to 20 percent was proper. 38 C.F.R. § 4.115b, DC 7528. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel