Citation Nr: 18158717 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 14-13 755 DATE: December 18, 2018 ORDER Entitlement to a disability rating of 40 percent, but no higher, for post-treatment residuals of prostate cancer, to include urinary frequency and erectile dysfunction, from August 1, 2013, is granted. FINDING OF FACT 1. The discontinuance of the 100 percent evaluation for prostate cancer is not a formal rating reduction in this case, as the “reduction” was by operation of law in accordance with 38 C.F.R. § 4.115(b), Diagnostic Code 7528, and the procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed. 2. From August 1, 2013, the evidence of record shows that the Veteran’s service-connected prostate cancer residuals were manifested by daytime voiding intervals less than one hour, or awakening to void five or more times per night. 3. The Veteran’s erectile dysfunction is not shown to have manifested by penile deformity. CONCLUSION OF LAW 1. The reduction in the rating for prostate cancer residuals, to include urinary frequency and erectile dysfunction, from 100 percent to 20 percent, effective August 1, 2013, was proper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7528. 2. From August 1, 2013, the criteria for a disability rating of 40 percent, but no higher, for prostate cancer residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for a compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1968 to September 1969. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The RO reduced the Veteran’s disability rating for post-treatment residuals of prostate cancer, to include urinary frequency and erectile dysfunction, from 100 percent to 20 percent effective August 1, 2013. In March 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. In December 2017, the Board remanded the case for further development. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In October 2018, the RO increased the disability rating for the Veteran’s post-treatment residuals of prostate cancer to 40 percent effective March 1, 2017. The Veteran contends that he is entitled to a higher rating for residuals of his prostate cancer, which include urinary frequency and erectile dysfunction. 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, which evaluates malignant neoplasms of the genitourinary system, contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the Agency of Original Jurisdiction’s (AOJ) action was not a “rating reduction,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432–33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable DC [6819] involved contained a temporal element for that 100 percent rating). The Veteran’s 100 percent evaluation was assigned under Diagnostic Code 7528, for malignant neoplasms of the genitourinary system, which assigns a 100 percent for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate criteria based on whichever genitourinary dysfunction predominates. As discussed above, the note associated with Diagnostic Code 7528 indicates that, following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure; if there has been no local reoccurrence or metastasis, the disability is to be rated on the residuals of voiding dysfunction or renal dysfunction, whichever is predominant. The AOJ noted that a February 2013 VA examination indicated that radiation therapy was completed in September 2010 and that external beam radiation was completed in December 2010. The Veteran’s Prostate-Specific Antigen (PSA) Test revealed a result of 0.09. The examiner noted that the Veteran had increased urinary frequency including a daytime voiding interval between one and two hours and nighttime awakening to void three or four times. The examination indicated that the Veteran’s voiding dysfunction did not cause urine leakage or required the use of an appliance. There was evidence of symptoms of obstructed voiding such as slow or weak stream as well as decreased force of stream but neither was found to be markedly decreased. The examiner reported that the Veteran’s disability did not impact his ability to work. As a result of the findings in the February 2013 VA examination, the RO issued a rating decision in May 2013 effectuating the reduction, effective August 1, 2013. The Board accepts the February 2013 VA examination as probative evidence that the Veteran’s prostate cancer was in remission. This timeline also demonstrates a period of at least six months between the cessation of the Veteran’s radiation treatment and the VA examination, during which a 100 percent rating was in effect. Thus, 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, with respect 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 temporal element of Diagnostic Code 7528. In short, 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. When a rating reduction is warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction must be prepared, setting forth all of the material facts and reasons for the proposed reduction. 38 C.F.R. § 3.105(e). The Veteran must then be notified of the contemplated action and the detailed reasons as well as given 60 days to present additional evidence showing that compensation should be continued at the present level. Id. The Veteran must be also informed of the right to a predetermination hearing, if requested within 30 days. 38 C.F.R. § 3.105(i)(1). If additional evidence is not received and a predetermination hearing is not requested within the applicable time periods, written notice of the final action, including the reasons for the decision and the supporting evidence, must be issued to the Veteran. 38 C.F.R. § 3.105(e), (i). In the present case, the May 2013 rating reduction results in a reduction of compensation benefits, and therefore VA must comply with the applicable notice requirements. 38 C.F.R. § 3.105(e). A March 2013 proposed rating decision outlined in detail the material facts and the reasons behind the proposed reduction. In a March 2013 notification letter, the Veteran was informed of the proposed reduction, the type of evidence that should be submitted to prevent the reduction, the 60-day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days. The Veteran was allowed the 60-day period to submit evidence, and no request for a predetermination hearing was submitted. After allowing the Veteran the appropriate time periods to submit evidence or request a hearing, VA properly provided written notice of the final action in the form of a May 2013 rating decision, which reduced the Veteran’s rating from 100 percent to 20 percent, effective August 1, 2013. In that rating decision, the RO notified the Veteran of the final decision, as well as the rationale and evidence supporting it. As VA provided proper notice of the proposed rating and the right to a predetermination hearing, allowed the requisite period of time for the submission of additional evidence and notified the Veteran of the final decision, VA has satisfied the notice requirements for a rating reduction. Thus, the discontinuance of the 100 percent rating was proper. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial rating assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. In increased rating claims, where a claimant seeks a higher rating for a previously service-connected disability, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such claims, VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Hart, 21 Vet. App. at 509. The Veteran’s residuals of prostate cancer are rated under Diagnostic Code 7528 (malignant neoplasms of the genitourinary system). Diagnostic Code 7528 provides, in pertinent part, that if there has been no local reoccurrence or metastasis, then the disability will be rated on residuals of voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. VA regulations provide that voiding dysfunction be rated as urine leakage, frequency, or obstructed voiding. See 38 C.F.R. § 4.115a. The regulation explicitly states that only the predominate area of dysfunction shall be considered for rating purposes. Id. Urinary frequency with a daytime voiding interval between two and three hours, or awakening to void two times per night, warrants a 10 percent rating. A 20 percent rating is warranted when there is a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A maximum 40 percent rating is warranted when there is a daytime voiding interval less than one hour, or awakening to void five or more times per night. Id. At the February 2013 VA examination, the examiner noted that the Veteran’s voiding dysfunction did not cause urine leakage and did not require the use of an appliance. The examiner noted that the Veteran’s voiding dysfunction caused increased urinary frequency characterized by daytime voiding interval between one and two hours and nighttime awakening to void three or four times. The examiner determined that the Veteran’s voiding dysfunction was also characterized by voiding symptomatology to include slow and weak stream as well as decreased force of stream neither of which was found to be markedly decreased. The Veteran underwent another VA examination in February 2018. The examiner noted that the Veteran’s voiding dysfunction caused increased urinary frequency characterized by daytime voiding interval less than one hour and nighttime awakening to void five or more times. The examiner reported that the Veteran’s voiding dysfunction did not require the wearing of absorbent material or the use of an appliance. As the Veteran’s prostate cancer was in remission and he was no longer receiving cancer treatment during this time period, it is appropriate to rate his disability based on the residual symptomatology. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Board has considered the Veteran’s statements regarding the severity of urinary frequency throughout the pendency of this appeal, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). The Veteran contends that his urinary frequency is characterized by voiding interval between 30 minutes and one hour and nighttime awakening to void five times a night. The Veteran submitted urinary frequency logs from June 3, 2013 to June 6, 2013 as well as from March 1, 2017 to March 28, 2017. Additionally, the Veteran testified that when he was asked about his urinary frequency during the February 2013 VA examination he just knew that he went to the restroom a lot so he gave the examiner a general answer. See March 30, 2017 Hearing Transcript. The Board finds the Veteran’s lay statements to be highly probative. In light of the evidence of record, the Board finds that the Veteran’s residuals of prostate cancer more closely approximate the criteria for a maximum rating of 40 percent under urinary frequency. Based on the Veteran’s competent lay statements, the Board finds that, for the entire appellate period, the Veteran’s voiding dysfunction symptoms manifest of daytime voiding interval of less than one hour or awakening to void five or more times per night. In granting a 40 percent disability rating for residuals of prostate cancer, the Board has determined that a rating in excess of 40 percent is not warranted as such rating would have to be accessed under voiding dysfunction. In this regard, the Veteran’s residuals of prostate cancer do not manifest in urine leakage that requires the use of an appliance or wearing absorbent materials that must be changed more than four times per day. Furthermore, the Veteran has not alleged, and the record does not otherwise show, that his prostate cancer disorder has been accompanied by any of the symptoms attributed with renal dysfunction. Accordingly, the Board has no basis to assign a rating in excess of 40 percent at any time during the appellate based upon such symptoms. The Veteran has a separate noncompensable rating under Diagnostic Code 7522 for erectile dysfunction associated with status post-prostate cancer. Erectile dysfunction has been rated under 38 C.F.R. § 4.115b, Diagnostic Code 7522, which provides a single 20 percent disability rating where the evidence shows deformity of the penis with loss of erectile power. There is no schedular rating for loss of erectile power alone. Where the Rating Schedule does not provide a compensable disability rating for a diagnostic code, a noncompensable percent rating is assigned when the requirements for a compensable disability rating are not met. 38 C.F.R. § 4.31. Therefore, where both loss of erectile power and deformity are not demonstrated, a noncompensable rating is assigned for erectile dysfunction. The Veteran contends that lack of being able to obtain an erection constitutes penis deformity. After reviewing all the evidence, lay and medical, the Board finds that, for the entire appellate period, the service-connected erectile dysfunction has been manifested by loss of erectile power, but not by a penis deformity. The February 2013 and February 2018 VA examinations note that the Veteran has loss of erectile power for which he takes medication. At the February 2013 VA examination, the examiner found that the Veteran was able to achieve an erection sufficient for penetration and ejaculation with medication. The February 2018 examiner noted that the Veteran was not able to achieve an erection sufficient for penetration and ejaculation with medication. The Veteran’s penis was examined at the February 2013 and 2018 VA examinations and both examiners’ reports do not indicate a penile deformity or abnormality. In the February 2018 examination, the examiner also found that there were no other pertinent physical findings, complications, conditions, signs or symptoms. At the time of the Board hearing, the Veteran was directed to fully discuss the issue of deformity with the examiner. As noted, the examiner did not find deformity. The Board has considered the Veteran’s contentions, but finds that the loss of ability alone done not constitute a deformity. The medical record, to include the VA examinations, does not include finds indicative of an internal or external deformity. See Williams v. Wilkie, CAVC 16-3252 (Aug. 7, 2018). The preponderance of the evidence weighs against a finding of deformity, and on this basis, a compensable rating for erectile dysfunction under Diagnostic Code 7522 is not warranted at any time during the appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.31, 4.115b, DC 7522. The Board notes that the Veteran is in receipt of special monthly compensation (SMC) on account of loss of use of a creative organ, and the award of SMC adequately contemplates his complained loss of reproductive functioning throughout the duration of the appeal. Moreover, the amount of SMC for loss of use of a creative organ is a non-variable amount and is set by statute. 38 U.S.C. § 1114(k). Hence, while the Veteran has been in receipt of SMC since November 23, 2010, the facts and circumstances relating to the Veteran’s current complaints of erectile dysfunction are not determinative to the amount of SMC compensation as the rate for SMC for loss of use of a creative organ is set by statute and is not variable. Accordingly, there is no legal basis for the Veteran to obtain increased compensation, to include SMC. In sum, the Board concludes that the preponderance of the evidence indicates that the Veteran is entitled to a 40 percent disability rating, but no higher, or post-treatment residuals of prostate cancer, to include urinary frequency and erectile dysfunction, from August 1, 2013. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel