Citation Nr: 20044955 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 17-27 262 DATE: July 7, 2020 ORDER The reduction in the disability rating for the residuals of the prostate cancer from 100 was procedurally proper. Entitlement to a 60 percent rating for prostate cancer, but no higher, for the appeal period from January 3, 2017, is granted. FINDINGS OF FACT 1. The reduction in the rating for the residuals of the Veteran’s prostate cancer from 100 percent was based on examination showing improvement (i.e., no recurrence or metastasis) and was implemented in accordance with governing regulatory due process provisions. 2. For the period beginning January 3, 2017, the Veteran’s prostate cancer has not required the wearing of absorbent materials that must be changed more than four times daily. CONCLUSIONS OF LAW 1. The criteria for restoration of the 100 percent rating for the prostate cancer residuals beginning on January 3, 2017, have not all been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. For the period beginning January 3, 2017, the criteria for a rating of 60 percent for prostate cancer residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.21, 4.115a, 4115b, Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 13, 1966 to July 11, 1969 and from November 10, 1969 to August 16, 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the February 2017 decision by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced a disability rating of 100 percent to 40 percent for prostate cancer, effective January 3, 2017. The Veteran testified at a Board hearing before the undersigned in May 2020; a transcript of that hearing is associated with the claims file. The regulations provide for specific notice requirements in instances where a reduction in disability rating is considered. 38 C.F.R. § 3.105(e). When a rating reduction is considered and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran’s address of record. 38 C.F.R. § 3.105(e). This proposed rating should set forth all of the material facts and reasons for the proposed reduction. The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. Here, to this end, the RO issued a December 2015 rating decision effectuating the reduction. In this rating decision, the RO notified the Veteran that the overall combined evaluation would change from 100 percent disabling to 90 percent and that his compensation payment would not be affected as he has been granted entitlement to individual unemployability which compensates at the 100 percent rate. Although the reduction was effectuated, the lower evaluation did not result in a reduction or discontinuance of compensation payments currently being made. Thus, the notice requirements under 38 C.F.R. § 3.105(e) are not applicable. Turning to the merits of the claim, from October 16, 2015, to January 3, 2017, an initial 100 percent rating was assigned for the Veteran’s prostate cancer and consequent residuals. Since January 3, 2017, his prostate cancer disability has been rated lower instead as 40-percent disabling based on residuals (voiding dysfunction). The Veteran disagrees with the February 2017 rating decision that reduced his initial disability rating for the prostate cancer residuals from 100 to 40 percent as of January 3, 2017. The 100 percent and 40 percent evaluations were assigned under 38 C.F.R. § 4.115, DC 7528, malignant neoplasms of the genitourinary system, which allows for a 100 percent rating for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate genitourinary dysfunction that predominates. A note after DC 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, DC 7528, Note. Initially, the Board has considered whether the claim at issue would be most appropriately characterized as a formal reduction claim under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, the Board finds that these provisions are inapplicable here 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,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992), (where the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable DC involved contained a temporal element for that 100 percent rating). In other words, this is in essence a “staged” rating case, rather than a formal reduction case because of the clear temporal element of DC 7528. When a rating is “staged”, it means different ratings are assigned at different times depending on the relative severity of the disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating reduction in this case was procedural in nature and by operation of law. The Board only has to determine whether 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 already discussed, the Veteran’s contentions notwithstanding, including during his May 2020 hearing, the Board finds that the procedural requirements were indeed properly followed in this case and the “reduction” was by operation of law under DC 7528. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that there is no evidentiary basis for continuance of the 100 percent rating for the prostate cancer residuals under DC 7528 after January 3, 2017. The evidence of record, including pertinent VA treatment records, VA examinations, and private treatment records, does not reveal local recurrence or metastasis (spreading) of the Veteran’s malignant neoplasm of the genitourinary system-prostate cancer after January 3, 2017. As discussed above, the rating criteria dictate that six months following treatment for prostate cancer, a VA examination will be done. At that point, if there has been no “local reoccurrence or metastasis,” then the disease will be rated based on its residuals. Here, in the January 2017 VA Prostate Cancer Disability Benefits Questionnaire (DBQ), the examiner noted that the Veteran completed treatment for prostate cancer when he underwent radical prostatectomy in February 2016. Furthermore, neither reoccurrence nor metastasis has been shown to have occurred by the time of the rating reduction. Instead, the evidence of record shows that there has been no metastasis. On August 2018 VA examination for prostate cancer, the examiner noted that there was no regional lymph node metastasis. The medical evidence of record dated since the Veteran’s radical prostatectomy do not reveal that there has been metastasis or reoccurrence. In the January 2017 VA Prostate Cancer DBQ, in addition to the August 2018 VA examination for prostate cancer, the Veteran’s prostate cancer was determined to be in remission. Thus, when applying the applicable rating criteria, the Board finds that the medical evidence does not show a reoccurrence of prostate cancer or that it has metastasized. In conclusion, the VA examination for prostate cancer, as well as the VA Prostate Cancer DBQ, have found that the Veteran’s prostate cancer is in remission. No record shows a reoccurrence of or metastasis of the prostate cancer. Accordingly, the Board finds that a change of the rating was proper as to the date it occurred pursuant to the rating schedule. See 38 C.F.R. § 4.115b, DC 7528; Rossiello v. Principi, 3 Vet. App. 430 (1992). Having determined that the procedural due process required to reduce the Veteran’s rating was correctly followed by the RO, the next question to be addressed is whether, given the available evidence, a rating higher than 40 percent is warranted since January 3, 2017. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. According to DC 7528, if there has been no local reoccurrence or metastasis, then the Veteran’s prostate cancer is rated based on the residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b, DC 7528. In this case, the evidence does not show, and the Veteran does not assert, that his prostate cancer residuals include renal dysfunction. In the January 2017 VA Prostate Cancer DBQ, August 2018 VA examination for kidney conditions, and August 2018 VA examination for prostate cancer, examiners opined that renal dysfunction was not present. Additionally, during the Board hearing, the Veteran testified that renal dysfunction is not present in this case. Therefore, it would be improper to rate his disability on this basis. Based on the evidence of record that includes VA treatment records, a VA examination report, VA DBQ report, private treatment urology report, and the Veteran’s statements regarding symptomatology, the predominant residual of the Veteran’s prostate cancer is voiding dysfunction. Voiding dysfunction is rated based on the particular condition involved, to include urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. A 40 percent evaluation is assignable for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the use of the wearing of absorbent materials, which must be changed two to four times per day. Id. A 60 percent evaluation, the highest available, is assignable for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the use of an appliance or the wearing of absorbent materials, which must be changed more than four times per day. Id. A January 2017 VA Prostate Cancer DBQ indicates that the Veteran changed his absorbent materials two to four times per day, as the 40 percent rating contemplates. See January 2017 VA Prostate Cancer DBQ. A June 2017 private treatment urology record documents the Veteran’s report that he changes his absorbent materials approximately 6 to 8 times per day. Of record is an August 2018 VA examination report for prostate cancer that includes the finding that the Veteran changes absorbent pads (adult diapers) 6 times per day. During the May 2020 hearing, the Veteran testified to the effect that he has had to change adult diapers 7 times per day and that has been the case the entire time that the rating has been at 40 percent. Given this testimony and June 2017 findings as well as those of the 2018 examination, the Board finds that the Veteran’s residuals of prostate cancer has made it necessary to change absorbent pads more than 4 times per day since his rating was reduced from 100 percent to 40 percent. Therefore, the proper rating, from January 3, 2017, forward, is 60 percent. The criteria for a rating higher than 60 percent are not met. Of note, the Veteran suffers from impotence as residual of his prostate cancer. There is no deformity shown or asserted, he has been assigned special monthly compensation for loss of use of a creative organ and is properly compensated under the law and regulations for the impotence. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.