Citation Nr: 20005161 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 16-09 101 DATE: January 22, 2020 ORDER The reduction of the disability rating for service-connected prostate cancer, from 100 percent to 0 percent disabling, effective December 1, 2014, was proper. REMANDED Entitlement to service-connection for a right shoulder disability is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected residuals of prostate cancer is remanded. FINDING OF FACT The September 2014 rating decision, which reduced the Veteran’s rating for service-connected prostate cancer from 100 percent to 0 percent was made with adequate consideration of pertinent laws and regulations and was supported by the evidence contained in the record at the time of the reduction. CONCLUSION OF LAW The reduction of the disability rating for service-connected prostate cancer from 100 percent to 0 percent, effective December 1, 2014, was proper. 38 U.S.C. §§ 1155, 5107(b), 5112(b)(5); 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1965 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from two September 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. Rating Reduction As noted above, in this case, the September 2014 rating decision reduced the Veteran’s disability rating for service-connected prostate cancer from 100 percent to 0 percent, effective December 1, 2014. Pursuant to 38 C.F.R. § 3.105 (e), where a reduction in the evaluation of a service-connected disability 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. 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. Final rating action will reduce or discontinue the compensation 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. 38 C.F.R. § 3.105 (e). Initially, the Board considered whether the claim at issue would be most appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, the Board does not find that these provisions are applicable in the present case. 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. Therefore, the AOJ’s action was not a “rating reduction,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). In short, the rating reduction in this case was procedural in nature and by operation of law. The Board must only 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 Board notes the 100 percent rating for the service-connected prostate cancer had been granted in February 2013 rating decision, effective December 28, 2012. The rating decision included a notification that the Veteran had active malignancy, but in order for him to continue with a 100 percent rating, an examination will be ordered in six months to assess “any change in evaluation [and] shall be subject to the provisions of 38 C.F.R. § 3.105 (e).” See February 2013 rating decision. Subsequently, the Veteran underwent a VA examination in February 2014. The examiner indicated that the Veteran underwent a radical prostatectomy in February 2013. Additionally, the examiner noted that the Veteran’s prostate-specific antigen (PSA) test showed that his levels were undetectable. The Veteran reported no residuals at the examination and the examiner indicated that the Veteran was in remission. Additionally, primary care treatment notes showed undetectable PSA levels with no residuals reported. A copy of a rating decision proposing to reduce the Veteran’s disability rating from 100 percent to 0 percent was sent to the Veteran in March 2014. A letter sent March 2014 informed the Veteran that he would be afforded 60 days for the presentation of additional evidence to show that compensation payments should be continued at the 100 percent level, and that he could request a predetermination hearing. The Veteran did not request a predetermination hearing. In September 2014, a rating decision effectuating the reduction was issued. Thus, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. In consideration of this information, the Board finds that a reduction to a 0 percent rating was adequately supported by the evidence of record. Based on a review of the procedural history, the Board finds that the AOJ complied with all the requirements under 38 C.F.R. § 3.105 (e). The Veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Moreover, the reduction was made effective no sooner than permitted by current law and regulations, “the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires.” 38 C.F.R. § 3.105 (e). The Veteran has not asserted that these procedural provisions were not followed. Thus, the Board finds that the AOJ appropriately followed the procedural actions to accomplish the discontinuance of the 100 percent rating, which resulted in a reduction of the Veteran’s benefits. Because the Veteran was no longer receiving surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the Board also concludes that there is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under Diagnostic Code 7528. See 38 C.F.R. § 4.115b; Diagnostic Code 7528. To date, the Veteran has not submitted any evidence that his prostate cancer was present during the period it was assigned a noncompensable rating, despite ample time to do so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (while VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim). There is no evidence the Veteran’s prostate cancer was active during the period his prostate cancer was rated as noncompensable. Accordingly, the Board concludes that, as the reduction in rating from 100 percent to 0 percent for prostate cancer was appropriate, the criteria for restoration of the 100 percent rating are not met. REASONS FOR REMAND Residuals of Prostate Cancer The Board is of the opinion that additional development is required before this issue on appeal is decided. The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159 (c)(4). During a December 2015 primary care visit the Veteran reported that he had begun to have some dribbling of urine and that he was using pads. Based on this treatment report, the RO granted the Veteran a 20 percent disability evaluation for his residuals of prostate cancer in a February 2016 statement of the case, and issued a rating decision on the same day to formalize the grant. In his February 2016 VA Form 9, and his January 2020 Appellant’s Brief, the Veteran stated his disability has worsened since his last examination. As there is evidence of a worsening of the disability since the last VA examination, which was performed over 4 years ago, the claim must be remanded for a new examination to determine the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Right Shoulder Disability The Board is of the opinion that additional development is required before this issue on appeal is decided. A review of the Veteran’s treatment notes indicates that he has a history of right shoulder pain. The Veteran has provided competent lay statements that his doctor told him that his right shoulder pain was related to his spinal condition. The Veteran’s STRs indicate that while on active duty service he was treated for pain caused by a mine exploding while he was in an APC. The Board finds an examination with medical opinion is necessary prior to final adjudication of this matter, in order to address whether the Veteran has any currently diagnosed right shoulder conditions, and if so, whether they were caused or aggravated by his active duty service, to include as etiologically related to his in-service injury or any service-connected disabilities. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected residuals of prostate cancer disability. The electronic records should be made available to and reviewed by the examiner. Ensure the examiner provides all information required for rating purposes. 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s claimed right shoulder disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed right shoulder disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. Additionally, the examiner must opine if any right shoulder disability is etiologically related to any service-connected condition, to specifically include as secondary to the Veteran’s service-connected spinal stenosis The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Additionally, the examiner is instructed that pain alone can be a disorder for VA compensation purposes if the pain results in functional impairment, even if there is no identified underlying diagnosis. Therefore, the examiner should provide an etiological opinion as to whether or not the Veteran’s pain causes functional limitation, and if so, if the pain is at least as likely as not (a 50 percent probability or greater) etiologically related to the Veteran’s period of service, to include as secondary to and/or aggravated by (i.e., worsened) a service-connected disability. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.