Citation Nr: 1807955	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  14-19 870A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to restoration of a 100 percent rating for prostate cancer status post prostatectomy, from June 1, 2014.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Creegan, Associate Counsel






INTRODUCTION

The Veteran served on active duty from October 1964 to February 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

This case was previously before the Board in July 2017, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. At the time of the effective date of reduction, June 1, 2014, the 100 percent disability rating for the Veteran's prostate cancer status post prostatectomy had been in effect for less than five years.

2. At the time of the March 2014 rating decision reducing the rating for the Veteran's prostate cancer status post prostatectomy to 40 percent, the evidence showed that the Veteran's prostate cancer status post prostatectomy had improved under the ordinary conditions of life.


CONCLUSION OF LAW

The rating reduction for prostate cancer status post prostatectomy from 100 percent to 40 percent, effective June 1, 2014, was proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.115b, Diagnostic Code 7527 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran has not 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 duty to assist argument).

In rating reductions, when VA contemplates reducing an evaluation for a veteran's 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), "[w]here 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." Id.  In addition, "[t]he 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." Id.  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), and 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). 

With respect to the matter of restoration of a 100 percent rating for prostate cancer status post prostatectomy, the RO notified the Veteran of the proposed reduction in a January 2014 letter. The letter informed him of the reasons and bases for the proposed reduction and the type of information or evidence he could submit in response. He was also informed of his rights to a personal hearing and representation and that unless additional evidence was received within 60 days, his hearing loss evaluation would be reduced. Therefore, the Board finds that the RO also complied with the additional notification requirements set forth in 38 C.F.R. § 3.105(e). 

The Board finds the appeal may be considered on the merits.

A Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In this regard, not only must it be determined that an improvement in a disability has actually occurred, but also that the 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, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper. Pertinent to the instant case, 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, "[r]examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating." 38 C.F.R. § 3.344(c).

The Veteran was granted service connection for prostate cancer in March 2011. In January 2013, he underwent a prostatectomy. In November 2013, he received a VA examination to assess his recovery. Following the examination, the RO proposed reduction of his rating from 100 percent to 40 percent. 

Diagnostic Code 7528, malignant neoplasms of the genitourinary system, provides one disability level-100 percent-for active disease. A Note to that Code states that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there has been no local recurrence or metastasis, a veteran's cancer is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. 

In this case, the Veteran's cancer was in his prostate, not his kidneys. Accordingly, the residuals are to be rated under voiding dysfunction pursuant to Diagnostic Code 7527. Diagnostic Code 7527 provides that prostate gland injuries, infections, hypertrophy, and post-operative residuals are to be rated as voiding dysfunction or urinary tract infection, whichever is predominant. Here, recurrent urinary tract infections have not been shown by the evidence; thus, voiding dysfunction is the predominant disability. 

Voiding dysfunction is rated under the criteria of 38 C.F.R. § 4.115a as urine leakage, urinary frequency, or obstructed voiding. A rating of 40 percent is assigned for urinary frequency with daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night; or, for urine leakage requiring the wearing of absorbent materials that must be changed 2-4 times per day. Id. A maximum rating of 60 percent is assigned for urine leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. Id. 

The Veteran was diagnosed with prostate cancer in July 2010, confirmed by biopsy in August 2010, and the initial treatment regimen was "watchful waiting."  In January 2013, the RO granted service connection for prostate cancer and assigned a 100 percent rating, effective March 3, 2011, the date of receipt of claim.  The Veteran underwent a radical prostatectomy in January 2013.  

At the Veteran's November 2013 VA examination, the doctor noted he reported a daytime voiding interval of 1-2 hours and waking 2 times at night. He also reported wearing pads that need to be changed 2-4 times per day. The doctor noted that the Veteran's condition did not require an appliance. 

Treatment records from July and August 2014 indicate that the Veteran had incontinence that required the wearing of pads that needed to be changed 2 times per day. Records from this timeframe also indicate that the Veteran's prostate cancer had all been removed, though there was the chance that it could return. 

The evidence of record at the time of the March 2014 rating decision supports the finding that a reduction for the prostate cancer from 100 percent to noncompensable was warranted, and there is no other evidence to show that the Veteran experienced a local recurrence or metastasis of prostate cancer since that time. As outlined above, Diagnostic Code 7528 provides a single total (100 percent) disability rating for active prostate cancer. Provided there has been no local reoccurrence or metastasis after six months following the cessation of treatment, the disability rating under Diagnostic Code 7528 essentially changes to noncompensable. In such cases, the "0 percent" disability rating under Diagnostic Code 7528 is effectively replaced by disability ratings based on residual prostate cancer symptoms, in this case voiding dysfunction. All evidence indicates that the Veteran's voiding dysfunction required use of pads that needed to be changed 2-4 times per day, warranting the 40 percent rating that was assigned. 


ORDER

The rating reduction from 100 percent to 40 percent for prostate cancer post-prostatecomy, effective June 1, 2014, was proper; restoration is denied.




____________________________________________
J.W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs