Citation Nr: 1800828	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  13-01 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

1. Whether the reduction of prostate cancer from 100 percent disabling to 10 percent, effective June 1, 2010, was proper.

2.  Entitlement to a rating greater than 10 percent for residuals of prostate cancer prior to August 15, 2013, and in excess of 60 percent thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Shawkey, Counsel



INTRODUCTION

The Veteran served on active duty from November 1965 to September 1967.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  In this decision the RO reduced the Veteran's 100 percent rating for prostate cancer to 0 percent pursuant to 38 C.F.R. § 4.115(b), Diagnostic Code (Code) 7528.  This matter was previously before the Board in March 2015 and May 2017 at which times the issue on appeal was remanded for further evidentiary development.  There has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  In November 2017, the RO increased the rating for the Veteran's prostate cancer residuals from 0 to 10 percent, effective June 1, 2010.


FINDINGS OF FACT

1.  The discontinuance of the 100 percent evaluation for prostate cancer status post radiation treatment is not a formal rating reduction as the "reduction" was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528.

2.  The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed in this case. 

3.  As of June 1, 2010, the evidence does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer, such that continued application of a 100 percent evaluation for residuals of prostate cancer were appropriate under 38 C.F.R. § 4.115b, Diagnostic Code 7528.

4.  For the period beginning June 1, 2010, to August 15, 2013, the Veteran's prostate cancer residuals more closely approximate the criteria for a 20 percent disability rating.

5.  From August 15, 2013, the Veteran's prostate cancer residuals require the wearing of absorbent materials that must be changed more than four times per day.


CONCLUSIONS OF LAW

1.  The discontinuance of the 100 percent evaluation, effective June 1, 2010, for prostate cancer residuals status post radiation treatment 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).

2.  Resolving reasonable doubt in the Veteran's favor, the criteria for establishing a higher rating, to 20 percent, for prostate cancer residuals status post radiation treatment for the period from June 1, 2010, to August 15, 2013, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2017).

3.  The criteria for establishing a higher than 60 percent rating for prostate cancer residuals status post radiation treatment from August 15, 2013, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Discontinuance of 100 percent rating

The Veteran disagrees with the March 2010 (final reduction) rating decision that reduced his initial disability rating for prostate cancer from 100 percent to 0 percent, effective June 1, 2010, with the subsequent assignment of a 10 percent rating effective June 1, 2010.

Under 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system, a 100 percent rating is assigned for active malignancy.  A note after this code provides 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.  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, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant.  Id.

Here, the evidence shows that the Veteran was diagnosed as having prostate cancer in 2008 and that he underwent 44 sessions of radiation treatment that ended in February 2009.  

In terms of the reduction of the 100 percent rating, the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344 are not applicable because this is not a formal rating reduction case.  Rather, it is essentially a staged rating case.  This is so since the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528, contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals.  See Rossiello v. Principi, 3 Vet. App. 430 (1992).  Accordingly, the Board only has to determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under Diagnostic Code 7528.  

The Veteran underwent a VA examination for his prostate cancer residuals in December 2009.  The RO issued a rating reduction proposal in January 2010 which set forth the material facts and reasons for the proposed reduction.  The Veteran was given 60 days to respond and present additional evidence.  In March 2010, the RO issued a rating decision effectuating the reduction.  The reduction was effective June 1, 2010.  Thus, the notice requirements for the reduction of the assigned prostate cancer rating were satisfied.  See 38 C.F.R. § 3.105(e). 

The Board further finds there that is no evidentiary basis for continuing the 100 percent rating for the Veteran's prostate cancer under Diagnostic Code 7528 after June 1, 2010.  See 38 C.F.R. § 4.7.  The medical evidence of record does not reveal local recurrence or metastasis of the Veteran's malignant neoplasm of the genitourinary system after June 1, 2010, nor does the Veteran contend as much.    Moreover, there is no evidence or allegation that the Veteran underwent radiation, chemotherapy, or other therapeutic procedure after June 2010.  

Given the lack of recurrence or metastasis of the prostate cancer on or after June 1, 2010, the initial 100 percent rating for prostate cancer was properly discontinued.  See 38 C.F.R. § 4.115b, Diagnostic Code 7528; Rossiello, 3 Vet. App. at 430.

II.  Increased Ratings

Having determined that the process required to reduce the Veteran's rating was correctly followed by the RO, the next question to be addressed is whether ratings higher than 10 percent prior to August 15, 2013, and higher than 60 percent from December 15, 2013, are warranted.

A.  Pertinent Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability.  38 C.F.R. § 4.1.  Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

As previously noted, the Board is directed under Code 7528 to evaluate prostate cancer residuals on the predominance of either renal dysfunction or voiding dysfunction.  Here, the Veteran does not appear to demonstrate any renal dysfunction and he was specifically noted by the December 2009 VA examiner to not have renal dysfunction.  Moreover, the Veteran is not claiming that he has renal dysfunction at any point during this appeal.  Rather, he reports a predominance of urinary/voiding dysfunction.  Accordingly, his residuals will be evaluated under the pertinent criteria for voiding dysfunction.

Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding.  

Regarding voiding dysfunction, a 20 percent evaluation is warranted when the wearing of absorbent materials must be changed less than 2 times per day.  A 40 percent is warranted when the wearing of absorbent materials must be changed 2 to 4 times per day.  See 38 C.F.R. § 4.115a.  

As for urinary frequency, a 10 percent evaluation is warranted with daytime voiding intervals between 2 and 3 hours, or awakening to void 2 times per night.  A 20 percent evaluation is warranted with daytime voiding intervals between 1 and 2 hours, or awakening to void 3 to 4 times per night.  A 40 percent evaluation is warranted with daytime voiding intervals of less than an hour, or awakening to void 5 or more times per night.  See 38 C.F.R. § 4.115a.

B.  Analysis

Higher than 10 Percent Rating Prior to August 15, 2013

There are no examination reports or treatment records contemporaneous to the period from June 2010 to August 15, 2013.  Records show that the Veteran was unable to attend a VA examination that was scheduled in April 2013 due to illness, and that he failed to report to a scheduled examination in June 2013.  Thus, the Board must look to earlier medical records in order to accurately assess his disability picture for this period.  As noted above, the Veteran completed radiation treatment in February 2009.  

The Veteran reported in May 2009 that he had difficulty with his stream, but there is no evidence of obstructed voiding.  Therefore, the analysis turns to urine leakage and urinary frequency symptoms.  38 C.F.R. § 4.115a.

There is no indication that the Veteran wore absorbent materials prior to August 15, 2013.  He reported at a two month interval followup visit in April 2009 that he had terminal dribbling, but otherwise no hesitancy, urgency, frequency, dysuria, hematuria or incontinence.  He also reported nocturia one to two times.  His primary residual at that time was erectile dysfunction for which he is presently service connected for and in receipt of special monthly compensation for.  See May 2009 rating decision.  While a May 2009 VA examiner reported that the Veteran had issues with urge incontinence, he also noted that the Veteran did not wear pads or diapers.  Moreover, the December 2009 VA examiner reported that the Veteran did not have urinary incontinence.  Accordingly, a higher than 10 percent rating is not warranted for voiding dysfunction for this period.  38 C.F.R. § 4.115a.

As for urinary frequency, the Veteran reported at the May 2009 VA examination that he voids at least 6 times a day and awakens at night to void two times.  The Board finds that the evidence of record, lay and medical, places the Veteran's residuals somewhere between a 20 percent rating requiring daytime voiding intervals between one and two hours, and a 10 percent rating requiring daytime voiding intervals between two and three hours.  38 C.F.R. § 4.115a.  Thus, by resolving reasonable doubt in his favor, the Board finds that his service-connected residuals of prostate cancer for the period prior to August 15, 2013, more closely approximates the criteria for a 20 percent rating for urinary frequency.  38 C.F.R. §§ 4.3, 4.7.  A higher than 20 percent rating for urinary frequency is not warranted since such criteria require daytime voiding intervals less than an hour; or, awakening to void five or more times a night,

Higher than 60 Percent Rating from August 15, 2013

The Veteran's 60 percent rating effective August 15, 2013, is based on findings from an August 15, 2013, VA genitourinary examination.  Findings at that time revealed that the Veteran wore absorbent materials that required changing at least four times a day and two times at night.    

The 60 percent rating is the maximum rating permitted under 38 C.F.R. § 4.115a, Diagnostic Code 7528.  Consequently, a higher rating for voiding dysfunction is not possible.  Moreover, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  That is, the evidence does not indicate that he suffered from any renal dysfunction or active malignant neoplasms of the genitourinary system.  Moreover, the August 2013 VA examiner reported that the Veteran's prostate cancer was in remission.

The Board notes that, pursuant to the most recent remand, the Veteran was scheduled for a VA examination to ascertain the current severity of his symptomatology.  However, the Veteran failed to respond to a notice to report for this examination.  As noted above, the Board finds that there was substantial compliance with the prior remand, see Stegall, supra, and this decision is based on the current evidentiary record.  

In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the assignment of an evaluation in excess of 60 percent, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

The discontinuance of the 100 percent evaluation for residuals of prostate cancer was proper.

A higher rating, to 20 percent, for residuals of prostate cancer prior to August 15, 2013, is granted, subject to the criteria applicable to the payment of monetary benefits.

A rating in excess of 60 percent for residuals of prostate cancer from August 15, 2013, is denied.



____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs