Citation Nr: A20008540 Decision Date: 05/14/20 Archive Date: 05/14/20 DOCKET NO. 191102-42339 DATE: May 14, 2020 ORDER The discontinuance of the 100 percent rating for service-connected prostate cancer was proper and restoration of the 100 percent rating, effective January 1, 2020, is denied. FINDING OF FACT The discontinuance of the 100 percent rating for prostate cancer is not a formal rating reduction as the “reduction” was by operation of law in accordance with 38C.F.R. § 4.115b, Diagnostic Code 7528. CONCLUSION OF LAW The discontinuance of the 100 percent rating for prostate cancer effective January 1, 2020, was proper, and restoration of a 100 percent rating, effective January 1, 2020, is not warranted 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 4.1, 4.7, 4.115b, Diagnostic Code 7528 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1972, and from January 1991 to April 1991. The rating decision on appeal was issued in September 2019 under the Appeals Modernization Act (AMA) review system. In November 2019, the Veteran timely appealed this rating decision to the Board and selected the direct review lane for this claim, in which the Veteran is asking for a decision based on the record as of the October 2019 AMA rating decision. Discontinuance of 100 percent-rating for Prostate Cancer In a September 2018 rating decision, the RO proposed a reduction of the Veteran’s current 100 percent rating for prostate cancer to 20 percent. In a September 2018 notification letter, the RO notified the Veteran of the contemplated action, furnished detailed reasons thereof, gave 60 days for presentation of additional evidence, and informed the Veteran that he may request a predetermination hearing within 30 days of the date of the notice. In a September 2019 rating decision, the RO reduced the Veteran’s disability rating for prostate cancer from 100 percent to 20 percent, effective January 1, 2020. The Veteran contends that the reduction of his rating was improper, and he should continue to receive a 100 percent rating because his symptoms have not changed. The Board notes that the Veteran’s prostate cancer is rated under Diagnostic Code 7528. The 100 percent evaluation was assigned under 38 C.F.R. § 4.115b, Diagnostic Code 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. § 4.115b. A note after Diagnostic Code 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 , Diagnostic Code 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. Id. 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. However, these provisions are not applicable because the provisions of 38 C.F.R. § 4.115b , Diagnostic Code 7528 contains 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 Diagnostic Code 7528. As discussed further below, the Board finds that these requirements have been met. Here, in September 2018, a rating decision proposing the reduction was issued setting forth all material facts and reasons for the proposed reduction. Additionally, the Veteran was informed in a notification letter dated September 2018, of the contemplated action, furnished detailed reasons thereof, given 60 days for presentation of additional evidence, and informed that he may request a predetermination hearing within 30 days of the date of the notice. Given such, the Board finds the procedural requirements under 38 C.F.R. § 3.105 (e) have been satisfied. 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 Diagnostic Code 7528 after January 1, 2020. The evidence of record does not reveal local recurrence or metastasis of the Veteran’s prostate cancer. Specifically, a September 2018 VA examination report, the VA examiner opined that the Veteran’s prostate cancer is in remission and noted that the Veteran had no treatment related to prostate cancer since his radiation therapy treatment ended in December 2016. Further, there is no evidence or allegation that the Veteran underwent radiation, chemotherapy, or another therapeutic procedure after 2016. Therefore, given the lack of recurrence or metastasis of the prostate cancer on or after January 1, 2020, the initial 100 percent rating for prostate cancer was properly discontinued and restoration of the total rating is not warranted. See 38 C.F.R. § 4.115b, Diagnostic Code 7528; Rossiello, 3 Vet. App. at 430. The Board has considered the Veteran’s contentions that he continues to suffer from residual symptoms of his prostate cancer, such as having to use the bathroom frequently and the loss of erectile function. However, as stated above, a 100 percent rating under Diagnostic Code 7528 is warranted for malignant neoplasms of the genitourinary system. Here, as clearly stated in the September 2018 VA examination report, the Veteran’s prostate cancer is in remission; and is thus inactive. Moreover, there is no evidence in the record, nor does the Veteran contend, that his prostate cancer is active after January 1, 2020. Furthermore, the Board notes that the Veteran is being rated for the residual symptoms of his prostate cancer, in this case, voiding dysfunction. The Board also notes that the Veteran is separately service connected for erectile dysfunction. Given such, the discontinuance of the 100 percent rating for service-connected prostate cancer was proper and restoration of the 100 percent rating, effective January 1, 2020, is denied. Accordingly, the claim is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.