Citation Nr: A20002399 Decision Date: 03/05/20 Archive Date: 03/05/20 DOCKET NO. 191106-43809 DATE: March 5, 2020 ORDER The reduction in the disability rating for residuals of prostate cancer from 100 to 20 percent effective November 1, 2019 was proper. FINDINGS OF FACT 1. An August 2018 rating decision proposed to reduce the Veteran’s rating for prostate cancer from 100 percent to 20 percent. 2. The proposed reduction was implemented in an August 2019 rating decision, effective November 1, 2019, and was made in compliance with applicable due process laws and regulations. 3. The Veteran’s prostate cancer is in remission; his prostate cancer residuals are voiding dysfunction requiring the wearing of absorbent materials that must be changed less than two times per day, and urinal dysfunction requiring awakening to void three to four times per night. CONCLUSION OF LAW The reduction of the 100 percent rating for the Veteran’s prostate cancer to 20 percent effective November 1, 2019, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 4.1, 4.10, 4.115a, 4.115b, Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1961 to April 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board received VA Form 10182 (Board Appeal: Notice of Disagreement) in November 2019 from the Veteran, which reflects that he selected the evidence submission option by a Veterans Law Judge. A November 2019 Board letter notified the Veteran that his appeal was placed on the Evidence Submission docket and that he had 90 days from receipt of his Form 10182 to submit additional evidence. That time period has expired, and no additional evidence other than that submitted with the Form 10182 has been received. On his Form 10182, the Veteran indicated that he had kidney disease due to his prostate cancer, and he submitted a medical record from September 2018 showing end stage renal disease of hypertensive chronic kidney disease and a medical article that stated there was an association with kidney disease and prostate cancer. However, the only issue on appeal in front of the Board is the propriety of the reduction in rating for the Veteran’s prostate cancer. The Board cannot adjudicate the claim of secondary service connection for kidney disease as it was not an issue in the decision on appeal and, in fact, has never been adjudicated by the RO. The Veteran may file a Supplemental Claim and re-submit this evidence or identify further evidence with that claim. See 38 C.F.R. § 3.2501. Specific instructions for filing a Supplemental Claim are included with this decision. 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 finds that these provisions do not apply to 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 AOJ’s action was not a “rating reduction,” as that term is commonly understood. Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). The Veteran’s 100 percent and 20 percent evaluations were assigned under DC 7528, for 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 criteria based on whichever genitourinary dysfunction 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, such as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528, Note. In the present case, DC 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. The VA examination in July 2018 noted the Veteran’s prostate cancer was in remission and all antineoplastic therapies had ceased more than six months prior. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, with respect to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In other words, this is in essence 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 proper by operation of law under DC 7528. With respect to the procedural requirements of 38 C.F.R. § 3.105(e), disagreements with a reduction in rating are governed by a separate set of notice requirements. When a rating reduction is warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction must be prepared, setting forth all of the material facts and reasons for the proposed reduction. Id. The Veteran must then be notified of the contemplated action and the detailed reasons therefore and given 60 days to present additional evidence showing that compensation should be continued at the present level. Id. The Veteran must be also informed of the right to a predetermination hearing, if requested within 30 days. See 38 C.F.R. § 3.105(i)(1). If additional evidence is not received and a predetermination hearing is not requested within the applicable time periods, written notice of the final action, including the reasons for the decision and the supporting evidence, must be issued to the Veteran. See 38 C.F.R. § 3.105(e), (i). In an August 2018 Notification Letter, the Veteran was informed of the proposed reduction, the type of evidence that should be submitted to prevent the reduction, the 60-day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days. An August 2018 proposed rating decision outlined in detail the material facts and the reasons behind the proposed reduction. The Veteran was allowed the 60-day period to submit evidence, and no request for a predetermination hearing was submitted. The Veteran did submit a notice of disagreement (NOD) as to the August 2018 rating decision evaluation for his erectile dysfunction and the proposed decrease of his prostate cancer in October 2018; in a November 2018 notification letter, the RO advised the Veteran that his NOD was premature as the 2018 rating decision was only a proposal and the RO had not yet carried out any action. The Veteran also submitted a letter from Dr. J.H. in October 2018, who provided the Veteran treatment for his prostate cancer, and stated that the Veteran was two years out of treatment at that time, and that he has a 10-year risk of recurrence of seven percent. However, the risk of recurrence is not equivalent to having active cancer; if the cancer hasn’t returned following treatment, then the rating for prostate cancer will be reduced. See 38 C.F.R. § 4.115b. VA will, however, rate the Veteran on any related issues being experienced as a result of having had prostate cancer, such as voiding dysfunction. As such, after considering this evidence, VA properly provided written notice of the final action in the form of the August 2019 rating decision, which reduced the Veteran’s rating from 100 percent to 20 percent. In that rating decision, the RO notified the Veteran of the final decision, as well as the rationale and evidence supporting it. As VA provided proper notice of the proposed reduction and the right to a predetermination hearing, allowed the requisite period of time for the submission of additional evidence and notified the Veteran of the final decision, VA has satisfied the notice requirements for a rating reduction. With respect to whether the reduction was proper by operation of law under DC 7528, the Board notes that 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. See 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. 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. See 38 C.F.R. § 4.7. As noted above, 38 C.F.R. § 4.115b, DC 7528, which pertains to malignant neoplasms of the genitourinary system, provides: following the cessation of surgery, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months and 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). The rating criteria also provide that if there has been no local reoccurrence or metastasis, then a Veteran’s cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. See 38 C.F.R. § 4.115b, DC 7528. Pursuant to 38 C.F.R. § 4.115a, voiding dysfunction is to be rated based upon its particular condition as urine leakage, frequency, or obstructed voiding. See 38 C.F.R. § 4.115a. Urine leakage which requires the wearing of absorbent materials which must be changed less than two times per day is rated as 20 percent disabling; 40 percent rating is for application when urine leakage requires the wearing of absorbent materials which must be changed two to four times per day; and when urine leakage requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a maximum 60 percent rating is for application. Id. Urinary frequency resulting in a daytime voiding interval between two and three hours or awakening to void two times per night is assigned a 10 percent rating. Id. When there is a daytime voiding interval between one and two hours or awakening to void three to four times per night, a 20 percent rating is warranted. Id. A maximum 40 percent rating is for application when there is a daytime voiding interval of less than one hour or awakening to void five or more times per night. Id. Obstructed voiding with symptomatology with or without stricture disease requiring dilation one to two times per year is assigned a noncompensable evaluation. Id. A 10 percent evaluation is for application when there is marked obstructive symptomatology (such as hesitancy, slow or weak stream, or decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc.; (2) Uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; or (4) Stricture disease requiring periodic dilation every two to three months. Id. A maximum 30 percent evaluation is assigned when there is urinary retention requiring intermittent or continuous catherization. Id. Renal dysfunction is rated as noncompensable when there is albumin and casts with history of acute nephritis or hypertension noncompensable under diagnostic code 7101. Id. A 30 percent evaluation is warranted when there is albumin constant or recurring with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. Id. With constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under diagnostic code 7101, a 60 percent evaluation is warranted. Id. An 80 percent evaluation is for application when there is persistent edema and albuminuria with BUN 40 to 80mg% or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Id. A maximum 100 percent evaluation is warranted when regular dialysis is required or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, BUN more than 80mg%, creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. Here, as noted above, the Veteran underwent a July 2018 VA examination and his prostate cancer was noted to be in remission. The Veteran also stated that he experiences urinary leakage requiring absorbents. The examination report marked that the Veteran had a voiding dysfunction that requires absorbent material which must be changed less than two times a day and causes daytime voiding interval between two and three hours, and nighttime awakening to void three to four times. The Veteran also had signs and symptoms of obstructed voiding, including markedly slow stream and markedly weak stream. Based on the medical evidence, the Board finds that the 20 percent rating reduction was appropriate as the evidence indicates his prostate cancer is in remission, and the prostate cancer residuals are voiding dysfunction requiring the wearing of absorbent materials that must be changed less than two times per day, and urinal dysfunction requiring awakening to void three to four times per night, with additional symptoms of daytime voiding interval between two and three hours, inactive disease, and a markedly slow and markedly weak stream. As such, the Veteran’s prostate cancer residuals do not warrant an evaluation in excess of 20 percent, nor is there evidence of renal dysfunction due to prostate cancer. See 38 C.F.R. § 4.115a. The Veteran has argued his current kidney disease was caused by his prostate cancer, as addressed above, and the Veteran must file a claim for such using VA’s standardized claims form. For the purposes of this appeal, with the evidentiary window closed, the Board must make a decision based on the evidence of record, and there is no competent medical evidence suggesting any renal dysfunction is due to the Veteran’s prostate cancer. In addition, although the Veteran is currently service-connected for hypertension with a 10 percent rating, the evidence and medical history of the Veteran’s hypertension is not indicative of renal dysfunction resulting from prostate cancer; he was service-connected for hypertension decades before he developed prostate cancer, with no indication that hypertension was a residual in any way of his cancer. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Finally, there is no evidence of local reoccurrence or metastasis of prostate cancer; as noted above, Dr. J.H.’s statement of a risk of reoccurrence is not the same as active reoccurrence. Further, the Veteran has already been awarded special monthly compensation for loss of use of a creative organ (i.e., erectile dysfunction). For the reasons set forth above, the Board finds that the RO properly reduced the level of compensation to 20 percent effective November 1, 2019. In sum, the preponderance of the evidence weighs against the restoration of benefits to 100 percent rating or any rating higher than 20 percent from November 1, 2019. If in the future, the Veteran suffers a remission of his prostate cancer or develops new symptoms he believes are related to his cancer, he can submit a new claim for a higher rating. Accordingly, the benefit of the doubt rule is not applicable, and the appeal is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.