Citation Nr: A20008765 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 190808-25089 DATE: May 18, 2020 ORDER The discontinuation of the 100 percent rating for prostate cancer and assignment of a 60 percent rating, effective October 1, 2019 was proper. FINDING OF FACT The discontinuance of the 100 percent evaluation for prostate cancer is not a formal rating reduction in this case, as the “reduction” was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code (Code) 7528. CONCLUSION OF LAW The discontinuation of the 100 percent for prostate cancer and assignment of a 60 percent evaluation, effective October 1, 2019, was proper. 38 U.S.C. § 1155; 38 C.F.R. § 3.105, 4.1, 4.7, 4.115b, Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran timely appealed a July 2019 rating decision that effectuated the reduction for the rating of the his service-connected prostate cancer from 100 percent to 60 percent, effective October 1, 2019, and elected the Evidence review docket when he appealed to the Board. See VA Form 10182 received August 8, 2019. The Board may therefore consider evidence of record as of the July 2019 rating decision and any evidence submitted within 90 days of the August 2019 election; that is, by November 6, 2019. Reduction of Prostate Cancer Rating The Veteran disagreed with the reduction of the 100 percent rating for his service-connected prostate cancer. In a June 2017 rating decision, service connection was granted and a 100 percent rating assigned, effective February 24, 2017. In an April 2018 rating decision, the Agency of Original Jurisdiction (AOJ) proposed reducing the rating, based on findings of an April 2018 VA examination. The rating was reduced in the July 2019 rating decision, effective October 1, 2019. The 100 percent and 60 percent evaluations were assigned under 38 C.F.R. §§ 4.115a , 4.115b, Code 7528, malignant neoplasms of the genitourinary system, which assigns a 100 percent for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate genitourinary dysfunction which predominates. 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. As an initial matter, the Board finds that the procedural requirements pertaining to the discontinuation of the Veteran’s 100 percent evaluation have been satisfied in this case. See 38 C.F.R. §§ 3.105(e), 4.115b, Diagnostic Code 7528. The Veteran was notified in an April 2018 rating decision of the proposed discontinuation of his 100 percent evaluation due to the remission status of his prostate cancer, and the assignment of a 60 percent evaluation due to his voiding dysfunction. An April 2018 notification letter provided detailed reasons for the discontinuation of his 100 percent evaluation and notified the Veteran of the 60-day window during which he could present additional medical or other evidence in support of his contention that compensation payments should be continued at the 100 percent level. The Board has 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 finds that these provisions are not applicable here 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 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 (1992). In other words, this is in essence a staged rating case, but it is not a formal reduction case because of the clear temporal element of Diagnostic Code 7528. The rating reduction in this case was procedural in nature and by operation of law. The Board only has to 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 finds that the procedural requirements were properly followed in this case and the “reduction” was by operation of law under Diagnostic Code 7528 in this case. In considering the evidence of record under the laws and regulations as set forth above, the Board also concludes there that is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under Diagnostic Code 7528 after October 2019. See 38 C.F.R. § 4.7. The evidence of record, including pertinent VA treatment records, private medical records and the VA Prostate Cancer examination, do not reveal local recurrence or metastasis of the Veteran’s malignant neoplasm of the genitourinary system-prostate cancer after October 1, 2019. On April 2018 VA examination, the examiner noted that the Veteran had completed his treatment for prostate cancer; radiation therapy was completed in August 2017 and androgen deprivation therapy was completed in November 2017. The examiner also found that his prostate cancer was in remission. In two August 2019 letters, the Veteran’s private providers both reported that the Veteran had completed radiation therapy in August 2017 and he had completed Lupron therapy. Both providers also reported there was no evidence of prostate cancer. The medical evidence does not indicate any recurrence or metastasis of prostate cancer. There is no evidence or allegation the Veteran underwent treatment for prostate cancer after November 2017. Therefore, given the lack of recurrence or metastasis of the prostate cancer on or after October 1, 209, the initial 100 percent rating for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b, Code 7528; Rossiello, 3 Vet. App. at 430. Restoration of the 100 percent rating is denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.