Citation Nr: 18161318 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-06 308 DATE: December 31, 2018 ORDER The reduction of the rating for testicular cancer from 100 percent to non-compensable, effective September 1, 2016, was proper, and restoration of the 100 percent rating is denied. REMANDED The issue of entitlement to a compensable rating for testicular cancer residuals, since September 1, 2016, is remanded. FINDINGS OF FACT 1. A May 2013 rating decision assigned a 100 percent disability rating for testicular cancer, effective February 27, 2013, on the basis of active malignancy or antineoplastic therapy. 2. An April 2016 rating decision proposed to reduce the disability rating for testicular cancer from 100 percent to noncompensable. 3. The proposed reduction was implemented in a June 2016 rating decision and made effective September 1, 2016, in compliance with applicable due process laws and regulations. 4. At the time of the reduction, the evidence of record demonstrated that there had been no local reoccurrence or metastasis of the Veteran’s testicular cancer and no surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, in more than six months. CONCLUSION OF LAW The reduction of the disability rating for testicular cancer, effective September 1, 2016, was proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 4.1-4.7, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 2007 to February 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which reduced the disability rating for the Veteran’s testicular cancer from 100 percent to noncompensable, effective September 1, 2016. The Veteran timely perfected an appeal of the June 2016 rating decision. See July 2016 Notice of Disagreement; November 2016 Statement of the Case; January 2017 VA Form 9. The Board acknowledges that rating reduction claims are separate from increased rating claims. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the Agency of Original Jurisdiction (AOJ) addressed the Veteran’s entitlement to a compensable rating in the November 2016 Statement of the Case. Additionally, in his July 2016 Notice of disagreement and January 2017 VA Form 9, the Veteran asserted that a compensable rating is warranted for cancer residuals due to vitamin D deficiency and fatigue. Therefore, the Board finds that both the increased rating claim and the propriety of the rating reduction are within its jurisdiction. Propriety of the Reduction The Veteran generally contends that the reduction in rating for testicular cancer from 100 percent to noncompensable was improper. The Veteran’s testicular cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 as a malignant neoplasm of the genitourinary system. Pursuant to Diagnostic Code 7528, a 100 percent evaluation shall be assigned for malignant neoplasms of the genitourinary system while treatment is ongoing. However, following the cessation or surgery, 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 38 C.F.R. § 3.105 (e). If there has been no local reoccurrence or metastasis, then the Veteran’s cancer is rated based on residuals. 38 C.F.R. § 4.115b. Initially, the Board notes that the claim at issue is not a formal reduction under the substantive provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344 because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for testicular cancer residuals. Therefore, the AOJ’s action was not a “rating reduction” as that term in 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 Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). In short, in this case, the Board must only determine if the procedural requirements of 38 C.F.R. § 3.105 (e) were met and if the reduction was warranted by operation of law under Diagnostic Code 7528. The provisions of 38 C.F.R. § 3.105 (e) set forth procedural guidelines for reducing a disability rating. Procedurally, where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons supporting the proposed reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then, a rating action will be taken to effectuate the reduction, if warranted. 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 Veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). In this case, a letter accompanying the April 2016 rating decision proposing to reduce the rating for testicular cancer provided the Veteran with notice of the proposed reduction and informed him that he could submit medical or other evidence to show why the reduction should not be made. The letter explained that this evidence could include a statement from a physician who treated or examined the Veteran. The RO also notified the Veteran that he could request a personal hearing to provide testimony on this matter. The RO further informed him that, if he did not request a hearing within 30 days or submit additional evidence within 60 days, the RO would make a decision based on the evidence of record. In short, this letter provided adequate content notice for the claim decided herein. Furthermore, when the reduction was effectuated in June 2016, it was not effective until September 1, 2016. Thus, the procedural requirements of 38 C.F.R. § 3.105 (e) were met in this case. 38 C.F.R. § 3.105 (e), (i)(2)(i). The Board also concludes there that is no evidentiary basis for continuance of the 100 percent rating for testicular cancer under Diagnostic Code 7528 after September 1, 2016. See 38 C.F.R. § 4.7. The evidence of record shows that the Veteran was diagnosed with testicular cancer and underwent a right radical orchiectomy in May 2012. He completed chemotherapy in October 2012. Due to residual lymphadenopathy in the upper abdomen, the Veteran underwent a retroperitoneal lymph node dissection in October 2012. See Service Treatment Records; October 2012 VA Examination Report; April 2013 VA Treatment Record. Thereafter, the Veteran was followed with regular markers and image studies. As of April 2013, the Veteran was “asymptomatic.” See April 2013 VA Oncology Consultation Report. In May 2013, the Veteran underwent a “port-a-cath removal following successful chemotherapy.” In a May 2013 rating decision, the RO granted entitlement to service connection for testicular cancer and assigned a 100 percent rating, effective from February 27, 2013, which was the day after the Veteran was discharged from service. VA treatment records through January 2016 do not reflect any further treatment for testicular cancer, nor do they show any local recurrence or metastasis of his testicular cancer. The Veteran was afforded a VA male reproductive system conditions examination in March 2016. He reported feeling “okay,” and he denied any recurrence of testicular cancer. The examiner noted the Veteran’s history of testicular cancer with treatment ending in 2013. The examiner noted that the Veteran’s testicular cancer was in remission and that the Veteran did not have any residual conditions or complications, other than a missing right testicle. In sum, the Veteran has not asserted, and the evidence does not show, that he received any surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures for treatment of his service-connected testicular cancer after the May 2013 surgery to remove his chemotherapy port. Thus, the Board finds that the date of cessation of treatment for testicular cancer was no later than May 2013. See Tatum v. Shinseki, 26 Vet. App. 443, 449 (2014) (Tatum II) (“[W]e hold that the date of ‘cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure’ refers to the date on which treatment for the cancer itself was concluded, as opposed to the date treatment for the residuals or side effects of cancer or the residuals of cancer treatment was concluded.”). Further, the Veteran underwent a VA examination to assess the current nature and severity of his condition in March 2016, which was well over six months after discontinuance of his treatment, as required by 38 C.F.R. § 4.115b, Diagnostic Code 7528. Neither the March 2016 VA examination report nor VA treatment records reflect any local recurrence or metastasis of testicular cancer, and the Veteran has not contended otherwise. Thus, the medical evidence clearly indicates that, at the time of the reduction, the Veteran’s testicular cancer was in remission without local reoccurrence or metastasis, and the 100 percent evaluation ceased by operation of law. Based on the foregoing, the Board finds that the discontinuance of a 100 percent rating for testicular cancer was proper and that restoration of a 100 percent rating is not warranted. However, as will be explained below, the Board finds that further development is necessary prior to addressing the issue of entitlement to a compensable rating for testicular cancer residuals since September 1, 2016. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (affirming the Board’s decision that a reduction was proper, but remanding the issue of the post-reduction evaluation for further development). REASONS FOR REMAND As noted in the Introduction, the Veteran has essentially endorsed a worsening of his testicular cancer residuals since he was last examined by VA in 2016. He also generally asserts that he has vitamin D deficiency and fatigue as residuals of his cancer, warranting a compensable evaluation. As such, the Board finds that a new examination, based on full consideration of the Veteran’s documented medical history and assertions, is needed to assess the current severity of the service-connected cancer residuals. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Any outstanding treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include oncology/hematology records. 2. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination(s) to determine the current nature and severity of his service-connected residuals of testicular cancer with germ cell tumor in lymph nodes. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. All signs, symptoms, and manifestations of residuals of the Veteran’s testicular cancer with germ cell tumor in lymph nodes should be noted. The examiner should specifically note whether the Veteran has any voiding or renal dysfunction as a residual of his cancer and whether there are any hemic or lymphatic residuals. The examiner should also discuss whether the Veteran’s vitamin D deficiency and/or fatigue are manifestations or residuals of the Veteran’s testicular cancer with germ cell tumor in lymph nodes. (Continued on the next page)   3. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel