Citation Nr: 20037534 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-00 706 DATE: June 2, 2020 REMANDED The discontinuance of the 100 percent evaluation for prostate cancer is remanded. Entitlement to a disability evaluation greater than 60 percent for service-connected prostate cancer, status-post radical prostatectomy is remanded. Entitlement to an initial rating greater than 30 percent for service-connected Parkinson’s disease with right upper extremity muscle rigidity and stiffness and moderate bradykinesia is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to March 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A Board virtual hearing was held with the undersigned Veterans Law Judge in April 2020. A hearing transcript has been associated with the claims file. Additional medical records and lay evidence were associated since the Agency of Original Jurisdiction (AOJ) reviewed the claims file with subsequent adjudication in June 2017. During the hearing, the Veteran waived review of any additional evidence which has been associated after the most recent adjudication by the AOJ. 1. Prostate cancer rating reduction. The Veteran contends that his prostate cancer symptomatology warrants a 100 percent rating. The Veteran stated that he is still under a doctor’s care and is dealing with incontinence and must wear urinary pads. The RO initially granted service connection for prostate cancer, status-post radical prostatectomy, assigning a 100 percent disability rating, effective July 8, 2004 to September 1, 2004. The Veteran was assigned a 10 percent disability rating thereafter. He was notified of this action in a November 2004 rating decision. An August 2015 rating decision increased the Veteran’s prostate cancer disability to 100 percent, effective March 16, 2015. A May 2016 rating decision proposed reducing the Veteran’s 100 percent rating to 40 percent, effective November 1, 2016. A June 2017 rating decision modified the 40 percent rating effective November 1, 2016 to a 60 percent disability rating. The Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, DC 7528, which contemplates malignant neoplasms of the genitourinary system (i.e. prostate cancer). Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 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. Id. Initially, 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 does not find that these provisions are applicable in the present case. This is 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” subject to the above cited regulations. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable diagnostic code involved contained a temporal element for that 100 percent rating). In the present case, DC 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, referable to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In other words, this is essentially a “staged” rating case, but it is not a formal reduction case because of the temporal element of DC 7528. In short, 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 DC 7528. As discussed further below, the Board finds that the procedural requirements were properly followed in this case and the “reduction” was by operation of law under DC 7528 in this case. The Board notes that the Veteran underwent a VA examination of his prostate cancer residuals in April 2016. In a May 2016 rating decision, the Veteran’s 100 percent evaluation for that disability was proposed to be reduced to 40 percent on the basis of that examination. The Veteran was informed of his rights, including to a predetermination hearing and to submit additional evidence, in a May 2016 VA letter. The Veteran did not request a hearing, however, he submitted additional evidence within 60 days of the VA letter. After reviewing the Veteran’s submissions and his request for a new VA examination, the RO finalized the discontinuance of the Veteran’s 100 percent evaluation for prostate cancer residuals in an August 2016 rating decision. The effective date of the reduction, November 1, 2016 was the day after the last day of the month after expiration of the 60-day period from the date of notice of the August 2016 final rating action, as set forth in the applicable VA regulation. A June 2017 rating decision increased the Veteran’s prostate cancer disability rating to 60 percent, effective November 1, 2016. An August 2015 VA examination report noted the Veteran’s rising PSA levels and diagnosis of recurrent prostate cancer by his private urologist. The Veteran completed radiation treatment in June 2015. The examiner noted that the Veteran had voiding dysfunction which caused urine leakage but did not require the use of absorbent material. The examiner found the voiding dysfunction caused voiding intervals less than 1 hour during the daytime and nighttime awakening to void 5 or more times. The Veteran did not report a history of recurrent symptomatic urinary tract or kidney infections, retrograde ejaculation, but did report erectile dysfunction. An April 2016 examination report noted that the Veteran’s prostate cancer was in remission. The examiner stated that the Veteran ended radiation treatment in June 2015. The Veteran’s PSA levels, provided by his primary care physician, tested less than 0.1 thereby indicating his cancer was in remission. The VA examiner also noted that the Veteran has voiding dysfunction and erectile dysfunction. The Veteran submitted a private medical report by Dr. N.N., M.D. who stated that the Veteran completed radiation therapy in June 2015 and returns every 3 months for follow-up care (i.e. lab work and diagnostic testing). The Board acknowledges that private medical notes from June 2019 indicate the Veteran’s PSA results showed a recurrence of prostate cancer. Thus, the Board finds that the Veteran must be provided an additional examination to determine if he does indeed have active prostate cancer, whether this is a continuation, or a resurgence of the cancer diagnosed in 2015. 2. Entitlement to a disability evaluation greater than 60 percent for service-connected prostate cancer, status-post radical prostatectomy is remanded. The Board notes that where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran stated his service-connected prostate cancer residuals symptoms have worsened since his April 2016 VA examination, including increased urinary frequency and increased use of replacement pads. Additionally, private medical records dated June 2019 indicate the Veteran’s PSA trend is consistent with recurrent disease. The Veteran’s physician informed him, unfortunately, that his prostate cancer has recurred. Given that outstanding medical records exist and evidence suggesting the Veteran’s service-connected disability has worsened since his 2016 examination, a Remand is required. 3. Entitlement to an initial rating greater than 30 percent for service-connected Parkinson’s disease with right upper extremity muscle rigidity and stiffness and moderate bradykinesia is remanded. In an October 2016 rating decision, the AOJ awarded service connection for Parkinson’s disease with right upper extremity muscle rigidity and stiffness and moderate bradykinesia, effective July 18, 2016. In September 2017 the Veteran filed a timely notice of disagreement with the assigned 30 percent disability rating. A statement of the case has not yet been issued with respect to this matter. A remand is required for the AOJ to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); 38 C.F.R. § 20.200. 4. Entitlement to a TDIU is remanded. The Veteran asserts that his service-connected disabilities have impacted his ability to work. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the TDIU issue is inextricably intertwined with the Veteran’s increased rating claim for to a disability evaluation greater than 60 percent for service-connected prostate cancer, status-post radical prostatectomy, the TDIU claim cannot be adjudicated at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, obtain VA treatment records not already associated. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any medical provider who, during the period on appeal, treated or is currently treating the Veteran’s service-connected residuals of prostate cancer and Parkinson’s disease, including Salvatore Luciano, Drs. Edward Trabulsi M.D., Jeffrey Boxman, D.O., and Naim Nazha M.D. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Also, obtain any VA treatment records not already associated with the claims file. 2. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an initial rating greater than 30 percent for service-connected Parkinson’s disease with right upper extremity muscle rigidity and stiffness and moderate bradykinesia. If the Veteran perfects an appeal by submitting a timely VA Form 9 or an AMA Notice of Disagreement (VA Form 10182), the issue should be returned to the Board for further appellate consideration. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected prostate cancer, status-post radical prostatectomy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should specifically indicate if the Veteran has or had prostate cancer from 2015 to present. 4. Ask the Veteran to complete a TDIU claim form. Then, schedule the Veteran for an examination[s] by an appropriate clinician[s] regarding the current severity of his residuals of prostate cancer, Parkinson’s disease, left upper extremity muscle rigidity, bilateral lower extremity muscle rigidity, and loss of automatic facial movement. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of residuals of prostate cancer, Parkinson’s disease, left upper extremity muscle rigidity, bilateral lower extremity muscle rigidity, and loss of automatic facial movement on employment. The examiner should identify all limitations or functional impairment caused solely by service-connected disabilities. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.