Citation Nr: 18159106 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-46 094 DATE: December 18, 2018 ORDER A reduction of the rating for the Veteran’s residuals of prostate cancer from 100 percent to 40 percent was not proper; the 100 percent rating is restored effective August 1, 2014. Entitlement to special monthly compensation (SMC) on the housebound level is restored, effective August 1, 2014. FINDINGS OF FACT 1. A January 2014 rating decision proposed to reduce the disability rating for the Veteran’s residuals prostate cancer from 100 percent to 40 percent. 2. A May 2014 rating decision implemented the proposed reduction, effective August 1, 2014. 3. The reduction of the Veteran’s residuals of prostate cancer from 100 percent to 40 percent disabling was made in compliance with applicable due process laws and regulations, but was not supported by the evidence contained in the record at the time of the reduction. 4. The Veteran’s 100 percent rating for service-connected residuals of prostate cancer is restored as of August 1, 2014; he is entitled to SMC at the housebound rate once again as of August 1, 2014. CONCLUSIONS OF LAW 1. The criteria for reduction of the rating for residuals of prostate cancer were not met at the time of the May 2014 decision reducing that rating. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. The Veteran’s SMC at the housebound level is restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to June 1971. Propriety of the Reduction – Residuals of Prostate Cancer Service connection for prostate cancer was granted by a March 2013 rating decision, and a 100 percent disability rating was assigned, effective February 20, 2013. On January 31, 2014, the RO issued a rating decision proposing to reduce the Veteran’s prostate disability rating from 100 percent to 40 percent. The Veteran was informed of this proposed rating change in a letter dated February 5, 2014. In a May 1, 2014 rating decision, the RO reduced the Veteran’s prostate cancer rating from 100 percent to 40 percent, effective August 1, 2014. He was notified of this rating decision on May 5, 2014. When a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). The Board finds that the procedures specified in 38 C.F.R. § 3.105(e) have been met. After completing the predetermination procedures specified in 38 C.F.R. § 3.105(e), the RO must send written notice of the final action. This notice must set forth the reasons for the action and the evidence upon which the action is based. Id. Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. Id. Here, the reduction was effectuated in a May 2014 rating decision, accompanied by a May 2014 notice letter; the effective date of the reduction was August 1, 2014. The RO satisfied the requirements by allowing a 60-day period to expire before assigning the new rating’s effective date. The question is thus whether the reduction was proper based on the evidence of record. Service connection for prostate cancer was awarded effective February 20, 2013, and was reduced effective August 1, 2014, less than five years later. Where a disability evaluation has continued at the same level for less than five years, the analysis is conducted under 38 C.F.R. § 3.344(c). Under 38 C.F.R. § 3.344(c), a reexamination that shows improvement in a disability warrants a reduction in the disability evaluation. However, VA rating reductions must be based upon a review of the entire history of the Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also Brown v. Brown, 5 Vet. App. 413, 419 (1993). Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system are rated as 100 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2012). The note accompanying Diagnostic Code 7528 states that, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures, 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) of this chapter. If there has been no local reoccurrence or metastasis, the disability is to be rated on its residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Pursuant to 38 C.F.R. § 4.115a, voiding dysfunction is to be rated based upon its particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a (2018). Urine leakage which requires the wearing of absorbent materials which must be changed less than two times per day is rated as 20 percent disabling. A 40 percent rating is for application when urine leakage requires the wearing of absorbent materials which must be changed two to four times per day. When urine leakage requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a maximum 60 percent rating is for application. Id. Urinary frequency resulting in a daytime voiding interval between two and three hours or awakening to void two times per night is assigned a 10 percent rating. Id. When there is a daytime voiding interval between one and two hours or awakening to void three to four times per night, a 20 percent rating is warranted. Id. A maximum 40 percent rating is for application when there is a daytime voiding interval of less than one hour or awakening to void five or more times per night. Id. Obstructed voiding with symptomatology with or without stricture disease requiring dilation one to two times per year is assigned a noncompensable evaluation. Id. A 10 percent evaluation is for application when there is marked obstructive symptomatology (such as hesitancy, slow or weak stream, or decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc.; (2) Uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; or (4) Stricture disease requiring periodic dilation every two to three months. Id. A maximum 30 percent evaluation is assigned when there is urinary retention requiring intermittent or continuous catherization. Id. Renal dysfunction is rated as noncompensable when there is albumin and casts with history of acute nephritis or hypertension noncompensable under diagnostic code 7101. Id. A 30 percent evaluation is warranted when there is albumin constant or recurring with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. Id. With constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under diagnostic code 7101, a 60 percent evaluation is warranted. Id. An 80 percent evaluation is for application when there is persistent edema and albuminuria with BUN 40 to 80mg% or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Id. A maximum 100 percent evaluation is warranted when regular dialysis is required, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, BUN more than 80mg%, creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. After a thorough review of the claims file, the Board finds that the evidence does not support the reduction effectuated by the May 2014 rating decision. In September 2013, the Veteran underwent a VA examination. The VA examiner noted that the Veteran had been diagnosed with prostate cancer in November 2012 and had undergone radium implants in December followed by radiation. It was noted that he was in remission. The VA examiner indicated that the Veteran had a voiding dysfunction resulting in the requirement that absorbent material must be changed 2 to 4 times per day. Increased urinary frequency of daytime voiding between 2 and 3 hours and nighttime awakening to void 5 or more times was reported. No kidney infection was reported. A November 2013 VA treatment record reveals that the Veteran had chronic kidney disease. In an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance submitted in March 2014 it was noted that the Veteran was incontinent of urine due to his prostate cancer. In a June 2014 statement the Veteran argued that his prostate cancer warranted at least a 60 percent rating based on voiding difficulties. The Board notes that the September 2013 VA examiner did not address all of the pertinent rating criteria when determining the residuals of the Veteran’s prostate cancer. In that regard, the examiner did not determine whether the Veteran had any symptoms of decrease in kidney function (renal dysfunction), which is one of the criteria upon which the residuals for prostate cancer are rated. Rather it was just noted that the Veteran did not have a recurrent history of kidney infections. However, the Board notes that VA treatment records at that time show that the Veteran had chronic kidney disease. Under 38 C.F.R. § 4.115a, renal dysfunction resulting in a definite decrease in kidney function warrants a 60 percent disability rating. The Board acknowledges that the evidence of record reflects that the Veteran’s prostate cancer is not currently active. Accordingly, pursuant to Diagnostic Code 7528, the evidence of record suggests that a reduction of the Veteran’s 100 percent disability rating for prostate cancer under Diagnostic Code 7528 was likely warranted at the time of the May 2014 rating decision. However, the evidence of record at the time of this rating decision was not sufficient to properly rate the Veteran’s residuals of prostate cancer as 40 percent disabling, as the September 2013 VA examiner did not adequately address the Veteran’s residuals under the pertinent rating criteria to determine the appropriate rating. Therefore, the September 2013 VA examination is not entitled to significant probative value. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (finding that the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). Moreover, there was evidence in the claims file at the time of the May 2014 rating decision indicating that the Veteran’s voiding dysfunction or renal dysfunction may have been sufficient to establish a rating higher than 40 percent for his prostate cancer residuals. Accordingly, although the evidence may have been sufficient to warrant a reduction under Diagnostic Code 7528, the evidence in the claims file was not adequate to reduce the Veteran’s 100 percent disability rating to 40 percent. Because the September 2013 VA examination is of little probative value, and in the absence of sufficient evidence demonstrating the Veteran’s residuals of prostate cancer under the pertinent rating criteria, the Board finds that the probative evidence of record does not show a material improvement in the Veteran’s prostate cancer sufficient to warrant a reduction to 40 percent of his 100 percent disability rating. Thus, the rating reduction was not proper, and the 100 percent rating must be restored. Discontinuance of SMC Benefits Additionally, the Veteran challenges the propriety of the severance of his SMC benefits. By way of history, the Veteran was awarded SMC based on housebound criteria, effective February 20, 2013, based on his 100 percent disability rating for prostate cancer and separate service-connected disabilities evaluated as at least 60 percent disabling. In a January 2014 rating decision, the Veteran was informed that his SMC based on the housebound criteria was proposed to be discontinued. In a May 2014 rating decision, his SMC was discontinued as he no longer met the statutory requirement of a single disability evaluated at 100 percent and additional disabilities independently rated at a combined 60 percent or more. SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent disabling and, in addition: has a service-connected disability or disabilities that are independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). As of this decision, the Board restores the Veteran’s 100 percent rating for residuals of prostate cancer. With this 100 percent rating restored, and with his additional disabilities independently rated at a combined 60 percent or more, he is entitled to SMC at the housebound level, effective from the date of its severance, August 1, 2014. 38 C.F.R. § 3.350(i). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel