Citation Nr: 18159721 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 14-25 343A DATE: December 19, 2018 ORDER Restoration of a 100 percent evaluation for adenocarcinoma of the prostate from June 1, 2013 is granted. REMANDED Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT At the time of the March 2013 rating decision, which reduced the Veteran’s evaluation for adenocarcinoma of the prostate from 100 percent to 40 percent, the evidence showed that his prostate cancer was active. CONCLUSION OF LAW The reduction of the evaluation for adenocarcinoma of the prostate from 100 percent to 40 percent was improper. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.343(a), 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1971 to May 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in June 2011 and March 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the case is now before the RO in Nashville, Tennessee. In the June 2011 rating decision, the RO denied a TDIU. The Veteran appealed that decision. In the March 2013 rating decision, the RO decreased the evaluation from 100 percent to 40 percent for adenocarcinoma of the prostate, effective June 1, 2013. The Veteran appealed the propriety of the reduction and for a higher evaluation. The Board notes that given the decision below to restore the Veteran’s 100 percent evaluation for adenocarcinoma of the prostate, any pending increased evaluation claim is rendered moot. The Veteran withdrew his request for a Board hearing. 1. Whether the reduction from 100 percent to 40 percent evaluation for adenocarcinoma of the prostate, effective June 1, 2013, was proper At the time of the March 2013 rating decision, which reduced the Veteran’s evaluation, the 100 percent evaluation for the Veteran’s adenocarcinoma of the prostate had been in effect since February 3, 2011. Thus, as the rating for adenocarcinoma of the prostate had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a), (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case. Nevertheless, in any rating-reduction case, regardless of whether the evaluation has been in effect for five years or more, certain general regulations need to be considered. Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; 38 C.F.R. § 3.344(c) (authorizing reduction of a rating in effect for less than five years on the basis of examination disclosing improvement). A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran’s adenocarcinoma of the prostate is evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. Under Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 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, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The question before the Board is whether the Veteran’s rating reduction for adenocarcinoma of the prostate from 100 percent to 40 percent was proper. Based on a careful review of the evidence, the Board finds that the Veteran’s rating reduction for adenocarcinoma of the prostate was improper. Initially, the Board finds that the RO complied with the notice requirements of 38 C.F.R. § 3.105(e) by issuing the January 2012 rating decision and January 2012 notification letter which proposed the rating reduction for the Veteran's adenocarcinoma of the prostate. Thus, as the notice requirements of 38 C.F.R. § 3.105(e) have been met, no further discussion in this regard is necessary. The rating reduction for the Veteran’s adenocarcinoma of the prostate was proposed in a January 2012 rating decision and implemented in the March 2013 rating decision, effective from June 1, 2013. A schedular 100 percent rating will not be reduced without examination showing material improvement. 38 C.F.R. § 3.343(a). In this case, an October 2011 VA examination showed that the Veteran had completed radiation therapy for his prostate cancer in April 2011 and had urinary leakage and urinary frequency as residuals of the radiation therapy. The VA examiner noted that the prostate cancer was active. Given the evidence that the Veteran’s prostate cancer was active at the time of the rating reduction, the Board finds that the evidence did not show material improvement of the disability at the time of the reduction. Hence, the reduction in the evaluation for adenocarcinoma of the prostate from 100 percent to 40 percent was not in accordance with applicable laws and regulations. Therefore, the 100 percent evaluation for adenocarcinoma of the prostate is restored from June 1, 2013. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran is seeking entitlement to a TDIU based upon his service-connected coronary artery disease and diabetic peripheral neuropathy of the bilateral upper and lower extremities. See November 2010 VA Form 21-8940. (The Board notes that as of an April 2017 rating decision, the RO granted service connection for muscle rigidity/stiffness and tremors of the bilateral upper and lower extremities and included the evaluations of those conditions with the evaluations of diabetic neuropathy of the bilateral upper and lower extremities.). In this decision, the Veteran’s 100 percent evaluation for adenocarcinoma of the prostate has been restored from June 1, 2013. However, the Board recognizes that the receipt of a 100 percent schedular disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114(s) by having an “additional” disability of 60 percent or more (“housebound” rate)). In Bradley, the United States Court of Appeals for Veterans Claims (Court) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. As the Veteran is seeking a TDIU based on service-connected disabilities other than his service-connected adenocarcinoma of the prostate, his claim for a TDIU remains on appeal. Nevertheless, the Board finds that since a June 2014 statement of the case (SOC) was issued for the Veteran’s TDIU claim, additional VA-generated evidence, in the form of multiple VA examinations in June 2015 (diabetic peripheral neuropathy, heart, and diabetes mellitus), March 2017 (Parkinson’s disease) and May 2017 (psychiatric), has been received. Accordingly, a remand is required for issuance of a supplemental statement of the case that reflects consideration of the VA examinations in June 2015, March 2017 and May 2017 and any other evidence associated with the record since the June 2014 SOC. See 38 C.F.R. §§ 19.31, 19.37(a). The matter is REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran’s service-connected coronary artery disease, muscle rigidity/stiffness and tremors of the bilateral upper and lower extremities, sleep disturbance, diabetes mellitus, type II, acne over back and lower chest area status post excision sebaceous cyst in back, loss of automatic movements in facial nerves, and difficulty chewing and swallowing that are not currently of record. 2. Readjudicate the TDIU claim with consideration of the additional evidence associated with the claims file since the issuance of the June 2014 SOC, including the June 2015, March 2017, and May 2017 VA examinations. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw