Citation Nr: 20032735 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 17-10 677A DATE: May 11, 2020 ORDER The reduction in the disability rating assigned for the Veteran’s residuals from prostate cancer from 100 percent to 20 percent effective September 1, 2014, was proper; the appeal is denied. A rating of 40 percent for residuals from prostate cancer is granted. FINDINGS OF FACT 1. At the time of the June 2014 rating decision that reduced the Veteran’s rating for residuals from prostate cancer, there was no local recurrence or metastasis of prostate cancer. 2. The Veteran’s residuals from prostate cancer are shown to require the wearing of absorbent materials which must be changed two times per day and result in a daytime voiding interval of between 30 to 60 minutes. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the Veteran’s residuals from prostate cancer from 100 percent to 20 percent effective September 1, 2014, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.115b, Diagnostic Code 7528. 2. The criteria for a schedular rating of 40 percent for residuals of prostate cancer have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1966 to February 1968, to include service in the Republic of Vietnam. In connection with this appeal, the Veteran testified at a hearing before the undersigned in March 2020. A transcript of that hearing is of record. The Board notes that the Veteran has perfected additional and separate appeals with regard to claims of entitlement to a service connection for liver cancer, to include as secondary to prostate cancer, and lung cancer, to include as secondary to prostate cancer and/or as secondary to herbicide agent exposure. At the March 2020 Board hearing, the Veteran requested that these issues be deferred for another hearing. Therefore, they will be addressed in a separate decision at a later date. Reduction The Veteran was originally awarded a 100 percent evaluation for his service-connected prostate cancer pursuant to Diagnostic Code 7528. A November 2012 rating decision proposed to reduce his rating for his residuals from prostate cancer from 100 percent to 20 percent. A June 2014 rating decision reduced the rating for his residuals from prostate cancer to 20 percent effective September 1, 2014. 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, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for residuals of prostate cancer. Therefore, the RO’s action was not a “rating reduction” as that term in commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). As such, 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. Initially, the Board observes the RO complied with the procedural safeguards regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. Under Diagnostic Code 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. 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. In October 2012, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s prostate cancer was in remission. The examiner indicated that the Veteran underwent a prostatectomy. The examiner indicated that the Veteran completed treated and was currently in watchful waiting status. The Veteran’s treatment records do not show a reoccurrence of the Veteran’s prostate cancer. At the March 2020 Board hearing, the Veteran testified that his prostate cancer had not returned. The Veteran has not submitted any evidence demonstrating local reoccurrence or metastasis of his prostate cancer. After a complete review of the records, the medical evidence clearly indicates that, at the time of the reduction, the Veteran’s prostate cancer was in remission without local reoccurrence or metastasis. As such, the evidence supports a finding that the discontinuance of a 100 percent rating for the Veteran’s prostate cancer was proper and restoration of a 100 percent rating is not warranted. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed a service connection claim for prostate cancer in March 2011. A June 2011 rating decision granted service connection and assigned an initial rating of 100 percent effective March 4, 2011, the date the Veteran’s service connection claim was received by VA. In August 2013, the Veteran filed an increased rating claim. A June 2014 rating decision decreased the Veteran’s rating from 100 percent to 20 percent effective September 1, 2014. The Veteran asserts that he is entitled to a higher rating. The Veteran’s residuals of prostate cancer are rated under Diagnostic Code 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. In this case, the Veteran was diagnosed with prostate cancer in January 2011, prior to his service connection claim, and underwent a prostatectomy. A June 2011 rating decision granted an initial rating of 100 percent effective March 4, 2011. A June 2014 rating decision reduced the Veteran’s rating from 100 percent to 20 percent effective September 1, 2014. Fortunately, there has not been any indication of reoccurrence of the cancer. In such a situation, the regulations direct that the condition should be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. As the claims file does not show the Veteran has been diagnosed with renal dysfunction or obstructive voiding, a rating under either voiding dysfunction or urinary frequency is more appropriate. Under voiding dysfunction, the particular condition will be rated as urine leakage, frequency, or obstructed voiding. A 20 percent rating is assigned when absorbent materials must be change less than two times per day. A 40 percent rating is assigned when absorbent materials must be changed two to four times per day. A 60 percent rating is assigned when either an appliance is required or when absorbent materials must be changed more than four times per day. Under urinary frequency, a 10 percent rating is assigned for daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is assigned for daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is assigned for daytime voiding interval less than one hour, or awakening to void five or more times per night. The Veteran’s medical records show that he has been diagnosed with residuals from prostate cancer with incontinence. He was prescribed absorbent materials. In October 2012, the Veteran was afforded a VA examination. He denied having any urinary symptoms or abdominal pain. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting a physical examination, the examiner indicated that the Veteran required absorbent material which must be changed less than two times per day. The examiner indicated that the Veteran did not require the use of an appliance. The examiner indicated that the Veteran had a daytime voiding interval between one and two hours. The examiner indicated that the Veteran had nighttime awaking to void three to four times. The examiner indicated that the Veteran did not have voiding dysfunction or a history of recurrent symptomatic urinary tract or kidney infections. At the March 2020 Board hearing, the Veteran testified that he needed to change his absorbent materials on average of two times per day. He testified that he had a voiding interval of approximately 30 to 60 minutes. The Veteran reported that he needed to change his absorbent materials on average two times per day. He also reported that he had a voiding interval of approximately 30 to 60 minutes. As such, the Veteran’s residuals of prostate cancer meet the criteria for a 40 percent rating either under voiding dysfunction or urinary frequency. Accordingly, the criteria for a schedular rating of 40 percent have been met, and the Veteran’s claim is granted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.