Citation Nr: A20009101 Decision Date: 05/21/20 Archive Date: 05/21/20 DOCKET NO. 190812-18793 DATE: May 21, 2020 ORDER Restoration of a 100 percent disability rating for prostate cancer is granted. 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 7528. 2. The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed in this case. 3. The evidence demonstrates active malignancy of the Veteran’s genitourinary system. CONCLUSION OF LAW The reduction of the disability evaluation for the Veteran’s service-connected prostate cancer, from 100 percent disabling to 40 percent disabling was not proper, and the 100 percent evaluation is restored, effective October 1, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, Diagnostic Code 7528 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the U.S. Army from August 1968 to May 1971. 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. This decision has been written consistent with the new AMA framework. The Board notes that, following the July 16, 2019 notice of the rating decision, the Veteran requested direct review by the Board in an August 12, 2019, VA Form 10182 Notice of Disagreement. Under this level of review, the Board may only consider evidence of record up to July 16, 2019. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether the reduction in evaluation, from 100 percent to 40 percent, for prostate cancer, effective October 1, 2019, was proper. The Veteran disagrees with the July 2019 rating decision that reduced his initial disability rating for prostate cancer from 100 percent to 40 percent disabling, effective October 1, 2019. In the alternative, the Veteran requests an increased disability evaluation of 60 percent for his prostate cancer. The Veteran’s residuals of prostate cancer are currently evaluated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528. Diagnostic Code 7528 provides that an initial rating of 100 percent shall be assigned for the first 6 months after the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure. If, at the end of that period, there has been no local recurrence or metastasis, rate residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. In terms of the reduction of the 100 percent rating, the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344 are not applicable because this is not a formal rating reduction case. Rather, it is essentially a staged rating case. This is so since 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. See Rossiello v. Principi, 3 Vet. App. 430 (1992). Accordingly, 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. In this case, the evidence shows that the Veteran was diagnosed with prostate cancer in January 2016 after a needle biopsy of the prostate was performed. (See March 2016 Disability Benefits Questionnaire). A November 2016 VA examination report indicates that the Veteran’s prostate cancer was considered active and that the Veteran’s course of treatment had not been finalized. A February 2018 VA examination report noted that the Veteran’s prostate cancer was considered active, and that the Veteran was being treated with medication; the Veteran was also found to have voiding dysfunction upon examination. VA treatment records, received in July 2019, reflect that, in April 2019, the Veteran’s PSA was elevated but less than 4; MRI of the prostate was negative. Nevertheless, the VA treatment record indicates that the Veteran’s prostate cancer is considered active. The RO issued a rating reduction proposal in April 2018 which set forth the material facts and reasons for the proposed reduction. The Veteran was given 60 days to respond and present additional evidence; the Veteran failed to respond. In a July 2019 rating decision, the RO effectuated the reduction, effective from October 1, 2019. Thus, the notice requirements for the reduction of the assigned prostate cancer rating were satisfied. See 38 C.F.R. § 3.105(e). The Board finds there that is no evidentiary basis for discontinuing the 100 percent rating for the Veteran’s prostate cancer under Diagnostic Code 7528 after October 1, 2019. See 38 C.F.R. § 4.7. Although the medical evidence of record does not reveal the Veteran underwent radiation, chemotherapy, or other therapeutic procedure for his prostate cancer, and there is no evidence of metastasis of his prostate cancer since October 1, 2019, the available medical evidence of record reflects that the Veteran continues to have active prostate cancer. The most recent medical evidence of record, dated in April 2019, reflects that the Veteran’s PSA is less than 4 but elevated compared to prior readings. Moreover, the treatment record reflects that the Veteran has an active malignant neoplasm of the prostate. In short, none of the evidence received prior to the December 2019 rating decision on appeal demonstrates that the Veteran is in remission or is otherwise considered to no longer have a malignant neoplasm of the genitourinary system. As such, the Board finds that the initial 100 percent rating for prostate cancer was improperly discontinued and that the requirements for restoration of the 100 percent disability evaluation for prostate cancer have been met. See 38 C.F.R. § 4.115b, Diagnostic Code 7528; Rossiello, 3 Vet. App. at 430. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.