Citation Nr: 20006344 Decision Date: 01/27/20 Archive Date: 01/24/20 DOCKET NO. 19-14 470 DATE: January 27, 2020 ORDER The rating reduction for prostate cancer with urinary incontinence from 100 percent to 40 percent, effective February 1, 2018, was proper. The rating reduction for diabetes mellitus, type II (diabetes) from 40 percent to 20 percent, effective February 1, 2018, was improper, and the 40 percent rating is restored. FINDINGS OF FACT 1. The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed. 2. At the time of the November 2017 rating decision, the Veteran’s prostate cancer was shown to be in remission and residuals were manifested by urinary leakage requiring the use of absorbent material which must be changed 2 to 4 times per day. 3. At the time of the November 2017 rating decision, improvement of the Veteran’s diabetes that reflected an improvement in his ability to function under the ordinary conditions of life was not demonstrated. CONCLUSIONS OF LAW 1. The reduction in the rating for prostate cancer from 100 percent to 40 percent, effective February 1, 2018, was proper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 4.115a, 4.115b, Diagnostic Code 7528. 2. The rating reduction for diabetes from 40 percent to 20 percent, effective February 1, 2018, was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.13, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 and December 1967. He received a Combat Infantryman’s Badge in recognition of his combat service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Initially, because the rating reductions at issue reduced the Veteran’s combined disability rating, resulting in a reduction in the amount of compensation payable to him, the procedural requirements of 38 C.F.R. § 3.105(e) apply. Here, the RO complied with those requirements in its May 2017 notice of the proposal to reduce the ratings, and in the November 2017 rating decision reducing the ratings. The Board finds the RO satisfied the requirements set forth in 38 C.F.R. § 3.105(e). 1. Propriety of the Rating Reduction for Prostate Cancer Prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 as a malignant neoplasm of the genitourinary system. Under DC 7528, 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, such as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528, Note. Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 40 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted. 38 C.F.R. § 4.115a. For urinary frequency, a 40 percent rating is warranted for daytime voiding interval less than one hour or; awakening to void five or more times per night. Id. There are no higher ratings for urinary frequency. Ratings in excess of 30 percent for obstructive voiding are not available. The medical and lay evidence does not suggest the Veteran has renal dysfunction due to prostate cancer. 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, DC 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the Agency of Original Jurisdiction’s (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 by operation of law under DC 7528. The Veteran has been in receipt of a 100 percent rating for prostate cancer since February 2007. Notably, in a March 2015 decision, the Board of Veterans’ Appeals (Board) found a December 2008 reduction in rating effective March 1, 2009 to be improper and restored the 100 percent rating based on a recurrence of prostate cancer. In December 2015, the Veteran presented for another prostate cancer examination. His PSA had increased to 0.335. The examiner recommended radiation therapy given his low PSA doubling time. The Veteran indicated not wanting to pursue salvage radiation therapy at that time and that he would like to follow up in 2 to 3 months. The status of his disease was indicated to be active. It was noted he had voiding dysfunction requiring 2 pads per day and 1 pad at night which was some improvement since his prostatectomy in 2007. He had no renal dysfunction. The RO continued the 100 percent rating in a December 2015 rating decision. A notice letter indicated he would have a follow-up examination at a future date. In April 2017, an examiner reviewed the available records and determined that the existing medical evidence provided sufficient information on which to prepare a Disability Benefits Questionnaire regarding prostate cancer and that an examination of the Veteran would likely provide no additional relevant evidence. It was noted the Veteran’s PSA was 0.423 in May 2016 and now post salvage radiation therapy that ended in October 2016, his PSA was significantly lower at 0.041. It was noted that his prostate cancer was in remission. His voiding dysfunction required absorbent materials which must be changed 2 to 4 times per day. In a May 2017 rating decision, the RO proposed to reduce the rating for prostate cancer to 40 percent because evidence indicated the disease was in remission after final radiation treatment in October 2016. In a May 2017 statement in support of claim, the Veteran disagreed with the proposed reduction. He stated that his PSA blood levels showed cancer cells still existed and was high risk to reoccur. He noted the Board’s May 2015 restoration of a 100 percent rating and stated his belief that after many years of complications and suffering, his 100 percent for prostate cancer should be permanent. The reduction was effectuated in a November 2017 rating decision. In his January 2018 notice of disagreement, the Veteran indicated urinary incontinence necessitating the wearing of 2 absorbent pads worn daily and there was a “high chance of cancer returning.” In his May 2019 Form 9, the Veteran alleged his voiding dysfunction was much, much worse and he was awaking to urinate 4 to 5 times at night and he was changing his absorbent materials 5 times during the day and once at night. Overall, based on evidence of record, the Board finds the rating reduction for prostate cancer, effective February 1, 2018, was proper by operation of law. As discussed, under DC 7528, on remission, if there is no local reoccurrence or metastasis, prostate cancer residuals shall be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Here, the evidence shows that in the time leading up to the reduction, and since, the Veteran has not been shown to have active prostate cancer or to have received treatment for such. The weight of the evidence further demonstrates that residuals included urinary frequency manifested by the necessity to wear absorbent materials that needed to be changed 2 to 4 times per day, supporting a 40 percent rating. The law does not allow for the continuation of a 100 percent rating based on the chance that cancer may reoccur, no matter how high a chance that may be. Based on the evidence demonstrating that the Veteran’s prostate cancer is in remission, the Board concludes that discontinuance of the 100 percent rating was proper by operation of law under DC 7528 and that the 40 percent rating was properly assigned. The Board recognizes the Veteran’s indication in his May 2019 Form 9 that his urinary incontinence has worsened. As this is an appeal regarding the propriety of the rating reduction, the Board does not have jurisdiction over a claim for an increased rating for prostate cancer residuals. The Veteran is encouraged to file a such claim with the AOJ if he feels his prostate cancer residuals have worsened since his last examination. 2. Propriety of the Rating Reduction for Diabetes The Veteran has been assigned a 40 percent rating for his diabetes pursuant to 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 since February 9, 2001. Because the 40 percent rating has been in effect for a period of more than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) apply. These provisions prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. Where a rating has been in effect for five years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for disease subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. Under DC 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. The next higher rating of 40 percent is assigned when the disability requires insulin, restricted diet, and regulation of activities. A 60 percent disability rating is warranted when the disability requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100 percent rating is warranted if the disorder requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring three hospitalizations a year or weekly visits to a diabetic provider, plus either progressive loss of weight and strength or signs that would be compensable if separately evaluated. 38 C.F.R. § 4.119. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, Note (1). The Court of Appeals for Veterans Claims has held that, in order to demonstrate a regulation of activities, “medical evidence” is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 percent rating)). Turning to the evidence, in February 2001, the Veteran filed a claim for service connection for diabetes. He presented for a VA examination in July 2001 and was diagnosed with adult onset diabetes, poorly controlled. It was indicated he required insulin, his diet was restricted, but his activities were not. He had not experienced ketoacidosis. He indicated complications, to include erectile dysfunction (for which he is separately service-connected) and issues with his vision (for which he is also separately service-connected). He visited a diabetic care provider every 2 to 3 months. In an August 2001 rating decision, the RO granted service connection for diabetes and assigned a 40 percent rating finding that, although there was no evidence of restriction of activities, the symptoms more clearly approximated the 40 percent evaluation. In February 2011, the Veteran presented for a diabetes examination in conjunction with a claim for increase for his service-connected diabetic retinopathy. It was noted he had not been hospitalized and had no episodes of ketoacidosis. Restricted diet and the use of insulin was noted. It was noted the condition did not affect the Veteran’s occupational functioning and daily activities. He was visiting a diabetic care provider every 6 months. In a March 2011 rating decision, the 40 percent rating for diabetes was continued. In a March 2015 Board decision regarding the rating for prostate cancer, the Board found a claim for an increased rating for diabetes was raised by record and referred the claim to the AOJ. In April 2017, an examiner reviewed the available records and determined that the existing medical evidence provided sufficient information on which to prepare a Disability Benefits Questionnaire regarding diabetes and that an examination of the Veteran would likely provide no additional relevant evidence. Regarding diabetes, it was noted the Veteran took a prescribed oral hypoglycemic agent and more than 1 injection a per day of insulin was required. Regulation of diet was required, but regulation of activities was not. The Veteran was noted to visit his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than 2 times per month. He had not been hospitalized for ketoacidosis or hypoglycemic reactions. In a May 2017 rating decision, the RO proposed to reduce the rating for diabetes to 20 percent disabling based on improvement of symptoms and the finding in April 2017 that the Veteran did not require regulation of activities which is part of the rating criteria for a 40 percent rating. In a May 2017 statement in support of claim, the Veteran disagreed with the proposed reduction. Regarding his diabetes, the Veteran argued that his A1C levels were higher than they were 10 years previously and that he avoided strenuous exercise, was on a strict diet and took several medications, to include insulin, twice daily. The reduction was effectuated in a November 2017 rating decision. In his January 2018 notice of disagreement, the Veteran indicated that his diabetes had not improved and that he was injecting insulin daily, only walking for exercise and restricting his diet. Pertinent to this claim, the Veteran’s rating could be reduced in one of three ways. First, if the evidence establishes the assignment of the 40 percent rating was clear and unmistakable error. 38 C.F.R. § 3.105(a). In this case, the RO has not articulated a clear and unmistakable error. Second, revision can be warranted based on a difference in opinion. 38 C.F.R. § 3.105(b). In such a case, the proposed revision would need to be recommended to VA’s Central Office, which did not happen in this case. Third, when the condition at issue has improved. 38 C.F.R. § 3.105(e). Here, the Board finds that VA has not met its burden to show improvement in the Veteran’s ability to function under the ordinary conditions of life and work based on improvement of his diabetes. Overall, the evidence suggests that in 2001, the Veteran required insulin and diet restriction to regulate his diabetes. Evidence since that time is against a finding that the Veteran’s service-connected diabetes has improved. Indeed, the Veteran’s A1C measurements have worsened, the Veteran takes additional insulin, and the evidence does not demonstrate improvement in the Veteran’s ability to function under the ordinary conditions of life. Given that actual improvement has not been demonstrated, the Board finds the rating reduction for diabetes was not proper and the 40 percent rating must be restored. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Boyd Iwanowski, Counsel 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.