Citation Nr: 19124824 Decision Date: 04/03/19 Archive Date: 04/03/19 DOCKET NO. 16-36 066 DATE: April 3, 2019 ORDER The reduction in the disability rating assigned to residuals of the Veteran's service-connected prostate cancer from 100 percent to 40 percent was improper and the 100 percent rating is reinstated, effective August 1, 2015. FINDING OF FACT The agency of original jurisdiction (AOJ) reduced the rating assigned to service-connected residuals of prostate cancer without first obtaining an adequate examination report. CONCLUSION OF LAW The reduction in the disability rating assigned to service-connected residuals of prostate cancer from 100 percent to 40 percent was improper. 38 U.S.C.A. §§ 1155, 1159; 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.10. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1964 to September 1968. In May 2014, the Agency of Original Jurisdiction (AOJ) granted the Veteran service-connected disability compensation for prostate cancer. In its decision, the AOJ assigned a 100 percent rating while noting that it would be necessary to proceed with a VA examination in six months. After arranging that examination, and reviewing the examiner’s report, the AOJ issued a proposal to reduce the assigned rating from 100 percent to 40 percent. This case comes to the Board from the Veteran’s appeal of the AOJ’s subsequent decision to implement the reduction. 1. The reduction in the disability rating assigned to residuals of the Veteran's service-connected prostate cancer was improper and the 100 percent rating is reinstated, effective August 1, 2015. Rating reductions are permissible under certain circumstances. When the ratings agency contemplates a reduction of compensation payments, it must first prepare a proposed reduction, setting out all the material facts and reasons for the reduction. See 38 C.F.R. § 3.105(e). The period between the effective date of the Veteran’s 100 percent disability rating (October 29, 2013) and the effective date of the AOJ's reduction of that rating (August 1, 2015) is less than five years, which means that the provisions of 38 C.F.R. § 3.44(a) and (b) do not apply to this case. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). Nevertheless, the reduction must satisfy the procedural requirements of 38 C.F.R. § 3.105(e) and the substantive requirements of 38 C.F.R. 3.344(c). Before implementing a reduction, it is necessary to ascertain, based on a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting a change are based upon thorough examinations. In addition, it must be determined that an improvement in the service-connected disability has actually occurred and that such improvement reflects an improvement in the claimant's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21. Consistent with 38 C.F.R. § 3.105(e), the AOJ prepared a proposal to reduce the disability rating for prostate cancer, together with an explanation for the proposal, and mailed a copy to him at the address the Veteran identified in his most recent prior correspondence to VA. In the letter explaining the proposal, the Veteran was advised of his right, within the next 60 days, to submit evidence showing that compensation payments should continue at their previous level. He was also notified of his right to testify at a pre-reduction personal hearing. Because the AOJ took these steps before implementing the rating reduction, the procedural requirements of 38 C.F.R. § 3.105(e) have been satisfied. The Board must, however, still consider whether the reduction was factually appropriate based upon the evidence of record. For the reasons below, Board must vacate the May 2015 rating reduction because the evidence fails to satisfy 38 C.F.R. § 3.344(c), which requires evidence of improvement before a rating is reduced. Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the rating. The Veteran was assigned an initial 100 percent rating for adenocarcinoma of the prostate under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528. This provision authorizes a 100 percent rating for the duration of any active malignancy and for six months “[f]ollowing the cessation of surgical, x-ray, antineoplastic chemotherapy[,] or other therapeutic procedure.” Id. According to the note to DC 7528, a VA examination should be conducted at the end of the six-month period and, “[if] there has been no local reoccurrence or metastasis,” prostate cancer residuals will be evaluated based on “voiding dysfunction or renal dysfunction, whichever is predominant,” pursuant to 38 C.F.R. § 4.115a. Id. “Any change in evaluation based upon [the mandatory VA examination] or any subsequent examinations shall be subject to the provisions of § 3.105(e) of this chapter.” After implementing the reduction in this case, the AOJ assigned a 40 percent rating based for voiding dysfunction. Voiding dysfunction may be rated as urine leakage, frequency, or obstructed voiding. Urine leakage contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating is warranted for urine leakage that requires the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. At the time of the proposed rating reduction, the AOJ had obtained medical treatment records which indicate that the Veteran had been diagnosed with adenocarcinoma of the prostate and was treated by a radiation oncologist. According to the records, he completed radiation therapy in December 2013. Under these circumstances, the AOJ was correct to assign an initial 100 percent rating and to schedule the mandatory six-month VA examination. In August 2014, the AOJ obtained a report describing the results of the six-month examination. The examiner indicated a diagnosis of prostate cancer with residuals of urinary frequency and decreased libido. The examiner noted the completion of radiation therapy in December of the previous year and described the current status of the disease as in remission. According to the examiner, the Veteran did experience voiding dysfunction – specifically increased urinary frequency. The report suggests a daytime voiding interval of between 1 and 2 hours and a need to awaken 5 or more times during the night for voiding. The Veteran also experienced obstructed voiding – specifically, hesitancy and weak stream. But the examiner reported that the Veteran’s voiding dysfunction did not cause urine leakage, nor did it require the use of an appliance. In response to the proposed reduction, the Veteran implicitly disputed one of the examination findings, which is relevant to the rating criteria. In a written statement, dated September 2014, The Veteran wrote that, if he needs to go more than one hour without urinating “I need to wear absorbent materials to keep from going and dribbling on my clothes.” The Veteran did not specify how many times, during a typical day, the absorbent materials need to be changed. According to 38 C.F.R. § 4.115a, if the number of times is between two and four, then the 40 percent rating would be correct. If the number is more than four, then a higher 60 percent rating would be appropriate. Id. There appear to be no subsequent statements, treatment notes, or examination reports which resolve this uncertainty. If this were an appeal of an increased rating case, it might be appropriate to remand the appeal to the AOJ to attempt to obtain new information concerning the frequency with which it is necessary to change absorbent materials associated with voiding dysfunction. The Board has considered the possibility that DC 7528, which requires a six-month examination, necessarily contemplates a temporary 100 percent rating and that – because there is uncontradicted evidence that radiation therapy is complete and that the Veteran’s prostate cancer is in remission –a reduction in the 100 percent rating was clearly correct and that the only remaining uncertainty is whether the rating should be reduced to 60 percent or to 40 percent. The United States Court of Appeals for Veterans Claims addressed similar issues in Green v. Nicholson, No. 03-1935, 2006 U.S. App. Vet. Claims LEXIS 1345 (Vet. App. Nov. 17, 2006) and in Williams v. McDonald, No. 12-2590, 2015 U.S. App. Vet. Claims LEXIS 95 (Vet. App. Jan. 29, 2015). Both cases concerned a reduction in a 100 percent rating for prostate cancer following the six-month examination required by DC 7528. In Green, the AOJ issued a proposal to reduce the appellant’s rating from 100 percent to 10 percent after an examination report described his prostate cancer as being in remission, although the report indicated that the appellant’s medical records had not been reviewed by the examiner. 2006 U.S. App. Vet. Claims LEXIS 1345, at *5-6. In a pre-reduction hearing, the appellant testified that he experienced urinary leakage and needed to wear pads which required changing up to six and seven times each day. Id. at *6. Perhaps based on this testimony, the proposed post-reduction rating was increased from 10 percent to 40 percent. The AOJ obtained a second report from the examiner, confirming that, in his opinion, the Veteran’s prostate cancer was in remission. Id. On appeal, the Court reversed a Board decision which denied restoration of the 100 percent rating. Id. at *22. Part of the Court’s decision concerned provisions applicable to ratings which have continued for five years or more. Under these provisions, the Court explained, the pre-reduction examination was inadequate because the examiner did not have access to the appellant’s claims file. Id. at *11. The Court further suggested that, even if the rating had not been “protected” by these special regulations, reversal would have been necessary: “Even if the standard for judging the adequacy of VA examinations set forth in [38 C.F.R.] § 3.44 did not apply, the VA examinations upon which the reduction was based were not adequate under the general VA regulatory requirements.” Id. at *12 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13). “Based on the regulations quoted above, VA is required in any rating-reduction case ‘to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.’” Id. at *13-14 (quoting Brown, 5 Vet. App. at 421) (emphasis added). “Accordingly, even if the Court were to remand the matter as urged by the Secretary, without regard to the application of [38 C.F.R.] § 3.344(a), the appellant’s 100% rating would need to be restored, effective from the date of the reduction, because the VA examinations upon which the appellant’s rating was reduced from 100% to 40% were inadequate. It is inconsistent for the Secretary to acknowledge that those VA examinations are inadequate and also to insist that the 40% remain during the interim period until a new VA examination is conducted.” Id. at *15. The Court in Green rejected the Secretary’s argument that a 100 percent rating for prostate cancer under DC 7528 is “temporary” and, therefore, the issue on appeal should not have been considered a reduction. Id. “[The Secretary] essentially argues that, because this is not a rating reduction case and because § 3.344 is not applicable, the Court should not apply the ‘void ab initio’ rule here. The Secretary thus argues that the appropriate remedy is to remand the matter to the Board for a new medical opinion.” Id. at *15-16. Quoting the Secretary’s response to public comments prior to the publication of the current version of DC 7528, the Court wrote, “[DC 7528] actually requires an examination, not a reduction, six months after the assignment of total benefits.” Id. at *18 (quoting 59 Fed. Reg. 2523, 2525 (Jan. 18, 1994). The Court further held that the reference to 38 C.F.R. § 3.105(e) in the note to DC 7528 required that any change in a 100 percent rating must comply with the procedures governing rating reductions. The Court reached a similar conclusion in Williams, reversing a Board decision upholding the reduction of a 100 percent rating for prostate cancer on the grounds that DC 7528 “provides for the automatic reduction of an initial total disability rating . . .” 2015 U.S. App. Vet. Claims LEXIS 95 at *11. “The only automatic event that occurs pursuant to DC 7258 is a mandatory evaluation six months after a therapeutic procedure. Only after a veteran is found to be cancer free at that appointment does the DC require a reduction in rating.” Id. In Williams, the AOJ reduced the appellant’s 100 percent rating for prostate cancer after he underwent a radical prostatectomy and an examination in which “the examiner found that no masses or nodes were palpated, there was no other evidence of malignancies . . . [and] his prostate-specific antigen (PSA) had been undetectable since the surgery; and . . . [the VA] examiner diagnosed the appellant with ‘status post radical prostatectomy for prostate cancer, with no evidence of active disease.’” Id. at *6. Nevertheless, instead of remanding the case issue for a new examination, the Court reversed the Board’s decision to uphold the reduction of the prostate cancer rating and ordered the reinstatement of the 100 percent rating in effect prior to the reduction. Id. at *14. This was the necessary remedy, the Court explained, because the Board had provided an inadequate statement of reasons for upholding the rating reduction. Although the six-month examination in this case suggested that the Veteran’s prostate cancer was in remission, similar evidence was not sufficient to support a reduction in earlier cases decided by the Court. To support the rating reduction, it was also necessary that the reduction be based on a thorough and adequate examination. See Brown, 5 Vet. App. at 420-21. When the Veteran submitted his statement concerning the use of absorbent materials in September 2014, the AOJ should have attempted to determine the frequency with which he needed to use those materials. Without this information, the August 2014 VA examination report was not adequate to assign a rating based on voiding dysfunction under 38 C.F.R. § 4.115a. When an “examination report . . . does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2. Thus, the August 2014 VA examination report was inadequate for rating purposes and the subsequent rating reduction was based on an inadequate examination. Under these circumstances, the reduction in the disability rating for the Veteran’s residuals of service-connected prostate cancer was not proper and the reduction from 100 percent to 40 percent is void ab initio. See Kitchens v. Brown, 7 Vet. App. 320 (1995). Accordingly, the Board will restore a rating of 100 percent, effective August 1, 2015. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel