Citation Nr: 18161053 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-20 290 DATE: December 28, 2018 ORDER The reduction from 100 percent to 20 percent for the Veteran’s service-connected prostate cancer status post prostatectomy with residual surgical scar was proper. An increased 40 percent disability evaluation, effective June 1, 2015, is assigned, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. A March 2015 rating decision reduced the Veteran’s rating for prostate cancer status post prostatectomy with residual surgical scar, from 100 percent to 20 percent, effective June 1, 2015, based on examination findings showing an improvement in the disability. 2. From June 1, 2015, the Veteran’s prostate cancer status post prostatectomy with residual surgical scar was manifested by voiding interval less than one hour or awakening to void five or more times per night. CONCLUSIONS OF LAW 1. The reduction in the rating for prostate cancer status post prostatectomy with residual surgical scar, from 100 percent to 20 percent, effective June 1, 2015, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 3.105, 4.115a, 4.115b, Diagnostic Code 7528. 2. From June 1, 2015, the criteria for a rating of 40 percent, but no higher, for prostate cancer status post prostatectomy with residual surgical scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to November 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Reduction In rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing. 38 C.F.R. § 3.105(i). Thereafter, a final rating action will be taken and the award will be reduced or discontinued effective 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. See 38 C.F.R. §§ 3.105(e); 3.500(r). In this case, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were properly carried out. An October 2014 rating decision proposed to reduce the rating for the Veteran’s service-connected prostate cancer status post prostatectomy with residual surgical scar from 100 percent to 20 percent. In an October 2014 letter, the Veteran was informed of the proposed rating reduction and provided with a copy of the October 2014 rating decision which set forth all the material facts and reasons for the reduction. The letter also informed the Veteran that he could submit additional evidence to show that the change should not be made, and that if no additional evidence was received within 60 days, his disability rating would be reduced. The Veteran was also advised that he could request a hearing to present evidence or argument on any point in his claim. In November 2014, the Veteran requested that a decision not be made until he submitted additional medical documentation. In November 2014, the Veteran submitted medical evidence in support of his argument. A March 2015 rating decision implemented the proposed reduction, effective June 1, 2015. At the time of the March 2015 rating decision, the 100 percent rating for prostate cancer status post prostatectomy with residual surgical scar had been in effect since October 28, 2013, which is a period of less than five years. According to 38 C.F.R. § 3.344(c), where a rating or ratings have been in effect for less than five years, as here, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c); see also Brown v. Brown, 5 Vet. App. 413, 417 (1993). Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. at 420-21; see also 38 C.F.R. §§ 4.2, 4.10. A March 2014 rating decision awarded service connection for prostate cancer, status post prostatectomy as 100 percent disabling, effective October 28, 2013. This evaluation was assigned pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528. The rating decision informed the Veteran that the assigned evaluation was not considered permanent and would be the subject of a future review examination. Under Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and 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 recurrence or metastasis, the evaluation is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For evaluations based on urine leakage, due to continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a maximum 60 percent evaluation is assigned for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent evaluation is assigned for voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. A 20 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. For evaluations based on urinary frequency, a maximum 40 percent rating is appropriate for daytime voiding interval less than one hour or awakening to void five or more times per night. A 20 percent rating is appropriate for daytime voiding interval between one and two hours or awakening to void three to four times per night. A 10 percent rating is appropriate for daytime voiding interval between two and three hours or awakening to void two times per night. 38 C.F.R. § 4.115a. For evaluations based on obstructed voiding, a maximum 30 percent rating is warranted for obstructed voiding manifested by urinary retention requiring intermittent or continuous catheterization. A 10 percent rating is warranted when there is marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post void residuals greater than 150 cc; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; and/or stricture disease requiring periodic dilatation every 2 to 3 months. Obstructed voiding manifested by obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants the assignment of a noncompensable rating. 38 C.F.R. § 4.115a. For evaluations based on urinary tract infection, a maximum 30 percent evaluation is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or continuous intensive management. A 10 percent evaluation is warranted when there is long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management is required. If urinary tract infections result in poor renal function, the disorder is rated as renal dysfunction. 38 C.F.R. § 4.115a. For evaluations based on renal dysfunction, a 100 percent rating is assigned for regular dialysis 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 decease function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is appropriate for persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent rating is appropriate for constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. A 30 percent rating is appropriate for constant albumin 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. A noncompensable rating is appropriate for renal dysfunction with albumin and casts with history of acute nephritis or hypertension. 38 C.F.R. § 4.115a. A review of the claims file indicates that the decision to reduce the Veteran’s rating from 100 percent to 20 percent for his prostate cancer status post prostatectomy with residual surgical scar was predicated on an August 2014 VA examination. The examiner found that the Veteran’s prostate cancer was in remission and his cancer treatments were completed. Voiding dysfunction due to prostate cancer was noted. Urine leakage was noted, and the examiner noted that the Veteran wetted his shorts about once a week. No use of an appliance for voiding dysfunction was noted. Increased urinary frequency was noted, resulting in daytime voiding between one and two hours, and nighttime awakenings to void three to four times per night. Signs or symptoms of obstructed voiding were not noted. There was no evidence of recurrent symptomatic urinary tract, kidney infections, or renal dysfunction. A February 2015 private treatment record submitted by the Veteran reflects that there was excellent chemical control thus far for prostate cancer and that protocol surveillance would be continued. It also indicated that the Veteran experienced stress urinary incontinence, that he did not wear pads, and had only occasional dampness with extreme Valsalva. The record did not contain other evidence regarding the Veteran’s symptoms at the time the rating reduction was finalized. Here, the Board concludes that based on the evidence of record at the time of the March 2015 rating decision, the reduction to 20 percent was proper, as the evidence of record at that time reflected that the Veteran experienced daytime voiding between one and two hours and nighttime awakenings to void three to four times per night. Such symptoms most nearly approximate the criteria for a 20 percent rating based on urinary frequency and reflect an improvement in the disability. The evidence at that time did not show any symptoms that would warrant a higher rating based on urinary frequency, obstructed voiding, or voiding dysfunction. As such, the March 2015 reduction of the Veteran’s rating to 20 percent was proper. C. Increased Rating Although the reduction was proper; the Board concludes that evidence submitted subsequent to the March 2015 reduction reflects that the Veteran’s disability picture more nearly approximates the criteria for a 40 percent, but no higher, rating, effective June 1, 2015.   Specifically, a May 2015 note from Alliance Urology indicated that the Veteran voided up to every hour during the day four to five times at night. In a May 2015 notice of disagreement, the Veteran indicated that he voided at least twice an hour during the day and four to eight times at night. Likewise, in June 2015 correspondence, the Veteran noted he voided twice an hour during the day and at least four to six times per night. He noted that he employed an absorbent material at nighttime, but did not indicate how often he changed it. The Board concludes that the evidence shows that the Veteran is entitled to the 40 percent evaluation, but no higher, due to voiding dysfunction based on urinary frequency from June 1, 2015. The Veteran’s May 2015 notice of disagreement and his June 2015 correspondence indicated that he voided twice an hour during the day and at least four to six times per night. The Veteran is competent to report symptoms such as urinary frequency and incontinence, because such requires only personal knowledge as it comes through the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, a May 2015 note from Alliance Urology stated that the Veteran voided up to every hour during the day and four to five times at night. Therefore, the Board assigns substantial weight of probative value to the Veteran’s competent lay statements and the May 2015 note from Alliance Urology. These statements also reflect that the disability worsened after the August 2014 VA examination and the March 2015 reduction. Thus, from June 1, 2015, the Veteran is entitled to the maximum 40 percent evaluation due to voiding dysfunction based on urinary frequency. The evidence does not show that the Veteran is entitled to a 60 percent evaluation due to urine leakage because the Veteran’s voiding dysfunction does not require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Instead, the August 2014 examiner noted that the Veteran wetted his shorts approximately once a week and no use of an appliance for voiding dysfunction was noted. The Board recognizes that in June 2015 the Veteran noted he used absorbent material at nighttime, but he did not indicate how often he changed it. As such, the Veteran’s voiding dysfunction based on urine leakage is contemplated in the 40 percent evaluation, which requires the wearing of absorbent materials which must be changed less than two times per day. The Veteran is not entitled a higher evaluation based on renal dysfunction or for voiding dysfunction based on obstructed voiding because there is no evidence that the Veteran exhibited any of the associated symptomology. The Board has also considered whether the Veteran is entitled to an additional disability evaluation pursuant to 38 C.F.R. § 4.118. 38 C.F.R. § 4.118 includes the rating criteria for skin, to include scars. DC 7800 applies to scars of the head, face or neck, DC 7801 addresses scars not of the head, face, or neck that are deep and nonlinear, DC 7802 addresses scars not of the head, face, or neck that are superficial and nonlinear, and DC 7804 applies to scars that are unstable or painful. Finally, DC 7805 notes that any disabling effects not considered in a rating provided under DCs 7800-7804 be rated under an appropriate diagnostic code. The Veteran’s prostatectomy scar has been characterized by the August 2014 examiner as five entry ports for robotic surgery, each about 2 cm, linear, hyperpigmented but not tender, elevated, depressed, or adherent. The examiner added that the scars were not painful and/or unstable. DC 7800 does not apply because the Veteran’s scars are not on his head, face, or neck. DCs 7801 and 7802 are specifically for rating of nonlinear scars and do not apply to the Veteran’s linear surgical scars. DC 7804 applies to scars that are painful and unstable. The VA examiner specifically noted that the Veteran’s surgical scars were not painful and were stable. Finally, DC 7805 notes that any disabling effect not considered shall be rated under an appropriate diagnostic code. As such, the Board concludes that a separate compensable rating for the surgical scar is not warranted.   As stated above, the Veteran’s prostate cancer status post prostatectomy with residual surgical scar is characterized by a voiding dysfunction requiring voiding twice an hour during the day and at least four to six times per night. Therefore, from June 1, 2015, the competent probative evidence more nearly approximates the criteria for a 40 percent, but no higher, rating. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Patel, Associate Counsel