Citation Nr: 20032097 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 18-50 248 DATE: May 7, 2020 ORDER The discontinuance of the 100 percent evaluation for service-connected residuals of prostate cancer was proper and restoration of the 100 percent rating, effective June 1, 2018, is denied. A rating in excess of 40 percent for prostate cancer residuals from June 1, 2018, is denied. FINDINGS OF FACT 1. The discontinuance of the 100 percent evaluation for prostate cancer 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 (DC) 7528. 2. From June 1, 2018, the Veteran’s prostate cancer has been in remission. Residuals include voiding dysfunction without urine leakage or need of the use of absorbent materials or an appliance, obstructed voiding including hesitancy only, and urinary frequency including daytime voiding intervals of 2 to 3 hours and nighttime awakening to void 5 or more times per night. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent evaluation for residuals of prostate cancer effective June 1, 2018, was proper. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, DC 7528 (2018). 2. The criteria for a rating in excess of 40 percent for residuals of prostate cancer from June 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.16, 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1970 to October 1971. In July 2018, the Veteran submitted a notice that he was opting-in to the Rapid Appeals Modernization Program (RAMP) and that he wished to pursue the Supplemental Claim option for the issues on appeal. However, his opt-in had not been processed prior to certification of the appeal to the Board. A notification letter was sent to the Veteran in February 2020 providing him the option either to notify the Board that he wanted to continue to opt-in to the RAMP system or instead to do nothing and thereby remain in the legacy system. The Veteran was provided 60 days to respond. As he has not indicated that he wishes to opt-in to the RAMP system, the Board assumes that he wants his appeal to remain on the Board’s docket. As such, the Board will consider the claims in the legacy system. The Veteran contends that the disability rating for his residuals of prostate cancer should not have been reduced from 100 percent to 40 percent disabling, effective June 1, 2018. The Regional Office (RO) granted service connection and a temporary total rating for prostate cancer in a February 2016 rating decision, effective September 4, 2015. In a February 2017 rating decision and notification letter, the RO proposed the Veteran’s rating be reduced from 100 percent to 40 percent, and in March 2018, the reduction was implemented, effective June 1, 2018. The 100 percent evaluation was assigned under 38 C.F.R. § 4.115b, DC 7528, malignant neoplasms of the genitourinary system, which assigns a 100 percent rating for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate genitourinary dysfunction under 38 C.F.R. § 4.115a. A note after DC 7528 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. See 38 C.F.R. § 4.115b, DC 7528, Note. Under 38 C.F.R. § 3.105(e), where a reduction in an 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 must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, 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 Veteran expires. 38 C.F.R. § 3.105(e). Initially, the Board considered whether the claim would be more appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344 (2018). However, these provisions are not applicable 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 RO’s action was not a “rating reduction” as the term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992). The rating reduction in this case was procedural in nature and by operation of law. Therefore, the Board must 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. As discussed further below, the Board finds that these requirements have been met. The Veteran was diagnosed with adenocarcinoma of the prostate following testing in June 2015. It was noted that the malignancy was not metastatic. He subsequently underwent 44 treatments of proton-based radiotherapy from January 2016 to March 2016. A VA examination was conducted in April 2016. The examiner reviewed the Veteran’s treatment history and conducted diagnostic testing which revealed normal prostate-specific antigen (PSA), urinalysis, and complete blood panel (CBC) results. However, the Veteran reported that his oncologist had informed him that they would not know whether the treatments were effective until July 2016 when more testing would be conducted. He had a voiding dysfunction, but it did not cause urine leakage or require use of any absorbent materials or an appliance. He experienced increased urinary frequency including a daytime voiding interval between 2 to 3 hours and nighttime awakening to void 3 to 4 times. Signs or symptoms of obstructed voiding included hesitancy only. He had no history of urinary tract infections (UTIs) or kidney infections. The Veteran did experience erectile dysfunction which was deemed attributable to prostate cancer residuals. He had no other residuals or complications. The examiner concluded that the Veteran’s disability would not impact his ability to work. In a September 2016 private treatment record, the Veteran reported awakening 2 to 3 times per night to urinate. His urinary stream was noted to be without hematuria or dysuria. The Veteran underwent another VA examination in November 2016. The examiner reviewed the Veteran’s treatment history and stated that following completing radiation therapy, his prostate cancer was in remission. Diagnostic testing revealed normal PSA, urinalysis, and CBC results. The Veteran had a voiding dysfunction, but it did not cause urine leakage or require use of any absorbent materials or an appliance. He experienced increased urinary frequency including a daytime voiding interval between 2 to 3 hours and nighttime awakening to void 5 or more times. His residuals did not include any signs or symptoms of obstructed voiding and he had no history of UTIs or kidney infections. Erectile dysfunction was noted to be a residual attributable to prostate cancer. He had no other residuals or complications. The examiner concluded that the Veteran’s disability would not impact his ability to work. In a March 2018 private treatment record, the Veteran stated that he would typically wake up 2 times per night to urinate. The clinician noted that his urinary stream remained stable with no episodes of hematuria or dysuria. Additional private treatment records from March 2018 and September 2018 reflected that the Veteran denied dysuria or hematuria. In an October 2018 lay statement, the Veteran reported that he got up 2 to 5 times per night to urinate and that he experienced erectile dysfunction as a result of his service-connected prostate cancer residuals. As noted above, the Veteran was granted service connection for prostate cancer at a temporary 100 percent rating, effective September 4, 2015, the date of claim. Following the April 2016 VA examination indicating ongoing treatment, in an April 2016 rating decision, the RO continued the 100 percent evaluation. Following the November 2016 VA examination demonstrating that the Veteran’s prostate cancer was in remission, the RO issued a rating decision and sent the Veteran a notification letter proposing to reduce the prostate cancer residuals rating from 100 percent to 40 percent. The Veteran did not request a predetermination hearing, but he did submit several private treatment records. Based on the entirety of the evidence, the RO effectuated the reduction in a March 2018 rating decision, effective June 1, 2018. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes there that is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under DC 7528 after June 1, 2018. The evidence of record, including pertinent private treatment records and VA examinations, does not reveal local recurrence or metastasis of the Veteran’s prostate cancer. Specifically, private treatment records reflect that the Veteran completed radiation therapy for prostate cancer in March 2016 and did not have concurrent chemotherapy and hormone therapy. Moreover, the November 2016 VA examination report indicated that the Veteran’s radiation therapy was completed in 2016 and that his prostate cancer was currently in remission. The medical records do not document a recurrence or metastasis of prostate cancer. Further, there is no evidence or allegation that the Veteran underwent radiation, chemotherapy, or other therapeutic procedures after March 2016. Therefore, given the lack of recurrence or metastasis of the prostate cancer on or after June 1, 2018, the initial 100 percent rating for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b, DC 7528; Rossiello, supra. Additionally, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were met and that the reduction was conducted by operation of law under DC 7528. The RO complied with the notification requirements of 38 C.F.R. § 3.105(e) and VA examinations were conducted in accordance with the criteria of DC 7528. As such, the discontinuance of the 100 percent evaluation for service-connected residuals of prostate cancer was proper and restoration of the 100 percent rating, effective June 1, 2018, is not warranted. Further, the Board finds that the award of a 40 percent rating effective June 1, 2018, was proper. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. See 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. As noted above, under DC 7528, if there has been no local reoccurrence or metastasis, then the Veteran’s prostate cancer residuals are to be rated as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. The Veteran does not demonstrate any renal dysfunction due to his prostate cancer residuals, but rather asserts a predominance of urinary/voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. Regarding urine leakage, a 20 percent evaluation requires the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent evaluation requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent evaluation requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a, Continual Urine Leakage, Post-Surgical Urinary Diversion, Urinary Incontinence, and Stress Incontinence. Regarding 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. 38 C.F.R. § 4.115a, Urinary Frequency. Finally, for obstructed voiding, a noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc per second); (3) recurrent urinary tract infections secondary to obstruction; and/or (4) stricture disease requiring periodic dilatation every two to three months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. Private treatment records and the VA examinations reflect that the Veteran experiences voiding dysfunction without urine leakage or need of the use of absorbent materials or an appliance, obstructed voiding including hesitancy, and urinary frequency including daytime voiding intervals of 2 to 3 hours and nighttime awakening to void 5 or more times per night. This symptom presentation warrants a maximum 40 percent rating based on urinary frequency. Because there is no evidence that the Veteran’s condition requires use of an appliance or the wearing of absorbent materials, an increased rating based on urine leakage is not merited. Further, the lone symptom of hesitancy would not warrant an increased rating based on obstructed voiding. Finally, the Veteran has not endorsed, and the medical evidence of record does not reflect, additional or worsening symptomology which is not addressed by the criteria of 38 C.F.R. § 4.115a. There is evidence that erectile dysfunction is a residual of the prostate cancer disability, however, he has already been service-connected for that disability and receives maximum benefits for that condition. Accordingly, the award of a 40 percent rating from June 1, 2018, was proper, and an increased rating is not warranted. MARTHA LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, Associate 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.