Citation Nr: A20007312 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191025-40321 DATE: April 30, 2020 ORDER The reduction in the rating assigned for residuals of prostate cancer, from 100 percent to 40 percent, effective December 1, 2019, is proper. A restoration of the Veteran's 100 percent rating assigned for prostate cancer is denied. An increased rating in excess of 10 percent for residuals of prostate cancer is denied. Entitlement to a rating in excess of 10 percent for residuals of prostate cancer, to include consideration of the propriety of the reduction from 100 percent to 10 percent, effective December 1, 2019. FINDINGS OF FACT 1. The discontinuance of the 100 percent rating 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 (DC) 7528. 2. The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed in this case. 3. Following December 1, 2019, the evidence of record does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer, such that continued application of a 100 percent rating for residuals of prostate cancer were appropriate under DC 7528. 4. The Veteran’s service-connected residuals of prostate cancer have been manifested by daytime voiding interval between two and three hours or awakening to void two times per night. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent evaluation for residuals of prostate cancer, effective December 1, 2019, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, DC 7528. 2. The criteria for entitlement to a rating in excess of 10 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 served on active duty in the United States Air Force from July 1968 to July 1973. The Veteran served in the Republic of Vietnam. The Veteran was awarded the Vietnam Service Medal. This matter is before the Board of Veteran's Appeals (Board) on appeal from a September 2019 AMA rating decision. The Veteran timely appealed this decision to the Board in October 2019 with the submission of a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), where he requested Direct Review by a Veterans Law Judge. Evidence was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.300 ). The Veteran may file a Supplemental Claim and submit or identify this evidence. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.2501). If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that the Veteran submitted a VA Form 21-526EZ in February 2020, in which he filed a rating increase claim for residuals of prostate cancer. The Veteran also underwent a VA examination for his residuals of prostate cancer in April 2020. In April 2020, the RO granted a rating increase of 20 percent for the Veteran’s residuals of prostate cancer, effective February 28, 2020. As stated, these findings and evidence are outside of the period on appeal and as such, will not be considered. Discontinuance of 100 percent for prostate cancer. From August 12, 2017 to November 30, 2019, an initial 100 percent rating was assigned due to the Veteran's prostate cancer diagnosis with active malignancy. See 38 C.F.R. § 4.115b, DC 7528. Since December 1, 2019, the Veteran's residuals of prostate cancer have been rated as 10 percent disabling based on residuals (urinary frequency and voiding dysfunction). The Veteran disagrees with the September 2019 (final reduction) VA rating decision that reduced his initial disability rating for residuals of prostate cancer from 100 to 10 percent. The Board notes that the September 2019 VA rating decision reduced the Veteran's rating, effective December 1, 2019. 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. Where the reduction in 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). 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 AOJ'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 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 in essence an increased 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. In this case, the Veteran underwent a VA examination for his prostate cancer in November 2018. In a November 2018 VA rating decision, the Veteran's 100 percent evaluation for that disability was proposed to be reduced to 10 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 December 2018 letter. No response was submitted by the Veteran or his representative regarding this proposed reduction. The AOJ finalized the discontinuance of the Veteran's 100 percent evaluation for residuals of prostate cancer in the September 2019 VA rating decision and assigned a 10 percent rating, effective December 1, 2019. The Veteran was notified of this reduction by letter dated in October 2019. In light of these facts, the Board finds that the particularized procedure for discontinuing the Veteran's 100 percent evaluation for his prostate cancer was appropriately and adequately completed in this case. See 38 C.F.R. § 3.105(e). 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 DC after December 1, 2019. See 38 C.F.R. § 4.7. The evidence of record, including pertinent VA treatment records and a VA examination, does not reveal local recurrence or metastasis of the Veteran's prostate cancer after December 1, 2019. Specifically, VA treatment records document the Veteran's diagnosis of prostate cancer in June 2017, with brachytherapy in October 2017. The Veteran's subsequent November 2018 VA examination and VA treatment records dated through September 2019 do not indicate any recurrence or metastasis of prostate cancer. Therefore, given the lack of recurrence or metastasis (spreading) of the prostate cancer on or after December 1, 2019, the initial 100 percent rating for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b, DC 7528. Rating in Excess of 10 percent. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected residuals of prostate cancer in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As noted above, DC 7528 (malignant neoplasms of the genitourinary system) provides, in part, that if there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as renal dysfunction or voiding dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b. Renal dysfunction provides higher ratings of 30, 60, 80, and 100 percent. See 38 C.F.R. § 4.115a. Nevertheless, the Board finds the evidentiary record does not show the Veteran's service-connected residuals of prostate cancer are predominantly manifested by renal dysfunction. In fact, the November 2018 VA examination noted the Veteran did not have renal dysfunction. As a result, further consideration for a higher rating in excess of 10 percent for residuals of prostate cancer for renal dysfunction is not warranted in this case. Under 38 C.F.R. § 4.115a, for voiding dysfunction, the rating schedule provides a 20 percent rating for disability requiring the wearing of absorbent materials which must be changed less than two times per day. Where the disability requires the wearing of absorbent materials which must be changed two-to-four times a day, a 40 percent rating is warranted. A 60 percent rating is warranted for disability requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115(a). For obstructed voiding, the rating schedule indicates that a 30 percent rating applies if the Veteran has urinary retention requiring intermittent or continuous catheterization. A 10 percent rating applies if there is marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post-void residuals greater than 150 cubic centimeters (cc), markedly diminished peak flow rates less than 10 cc per second by uroflowmetry, recurrent urinary tract infection secondary to obstruction, or stricture disease requiring dilatation every two to three months. A noncompensable rating applies if the disease is manifested by obstructive symptomatology, with or without stricture disease, requiring dilatation once or twice a year. Id. Regarding urinary frequency, the Board notes that a 10 percent rating is warranted with daytime voiding intervals between 2 and 3 hours, or awakening to void 2 times per night. A 20 percent rating is warranted with daytime voiding intervals between 1 and 2 hours, or awakening to void 3 to 4 times per night. A 40 percent rating is warranted with daytime voiding intervals of less than an hour, or awakening to void 5 or more times per night. Id. In an October 2018 VA treatment record, lab results were provided to the Veteran. The PSA is a blood test used to track prostate cancer. Following the Veteran’s treatment, this number decreased. There is no evidence that there is active prostate cancer left at this time. The Veteran denied urinary incontinence. In an October 2018 VA treatment record, there was a follow up one year after brachytherapy. The Veteran stated that when he remembers to take Flomax, his urinary stream is strong. The Veteran endorsed intermittent spotting of blood on the toilet paper after bowel movements, with no blood on the stool, melena, or drops of blood in the toilet bowel. There were no findings of disease progression or recurrence. The Veteran had infrequent, scant rectal bleeding in the setting of a normal rectal examination. The Veteran underwent a VA examination for his prostate cancer in November 2018. The VA examiner found that the Veteran's prostate cancer was currently in remission after brachytherapy and the residuals of his prostate cancer were voiding dysfunction, though it did not cause urine leakage or the use of an appliance. It did cause increased urinary frequency of daytime voiding intervals between two and three hours and nighttime awakening to void two times. The Veteran had a low stream, but not markedly slow, as a sign or symptom of obstructive voiding. The Veteran did not have a history of symptomatic urinary tract or kidney infections. The Veteran did not have renal dysfunction. The Veteran did have erectile dysfunction, but the etiology was unknown as it was diagnosed before the Veteran was diagnosed with prostate cancer. No other residuals were found due to the Veteran's prostate cancer or prostate cancer treatment. The Veteran’s prostate cancer did not impact his ability to work. The Veteran submitted two December 2018 statements regarding his residuals of prostate cancer, which included statements regarding his sex life and mood. The Veteran also stated that the radiation seeds destroyed some good tissue as well. The Veteran stated that the condition has caused him to have bladder problems when urinating. The Veteran stated that he needs pills to help urinate and they do not always work. The Veteran stated that he has wet on himself at times due to not being able to control the flow when it is time to release his urine. The Veteran stated that if he sits down too long, he experiences pain in his groin area. In the December 2018 statement, the Veteran also contended that the November 2018 VA examination was inadequate because the VA examiner did not seem interested in the Veteran’s medical condition and he was dismissed within five minutes. The Veteran also stated that the examiner would not look at the prescription prescribed that he takes on a daily basis. In a March 2019 VA treatment record, the Veteran denied incontinence. In an April 2019 VA treatment record, it was noted that PSA prostate level continues a downward trend and represents expected response to radiation therapy. In another April 2019 VA treatment record, the Veteran reported occasional episodes of urinary urgency resulting incontinence. The Veteran stated that he notices a stronger urine stream when he remembers to take Tamsulosin. In an August 2019 VA treatment record, the Veteran had no weight changes, no urinary or bowel incontinence, no diarrhea, and no constipation or blood in the stool. Initially, the Board finds that the November 2018 VA examination is adequate. A VA examination or medical opinion is not inadequate simply because an examiner was rude or that the Veteran believes the examination was not long enough. Rather, a VA examination is adequate when prepared by an appropriate medical professional, based on an accurate review of the Veteran's record, history, and symptomatology, and includes the necessary objective findings. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). (Continued on the next page)   In view of the foregoing, the Board finds that the preponderance of the evidence weighs against finding that a rating in excess of 10 percent for residuals of prostate cancer is warranted. The Veteran’s residuals of prostate cancer have been manifested by urinary frequency of daytime voiding intervals between two and three hours and nighttime awakening to void two times without the use of appliance or absorbent materials. The Veteran had voiding dysfunction, but with no markedly slow stream. He does not have renal dysfunction. Further, as noted above, the November 2018 VA examiner found that the Veteran had erectile dysfunction prior to his prostate cancer, as such, it is not a residual and a separate rating is not warranted. In summary, a review of the medical treatment records, examination report, and Veteran’s lay statements, does not indicate impairment which would warrant a rating in excess of 10 percent under the applicable criteria. Accordingly, a rating in excess of 10 percent for residuals of prostate cancer cannot be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert; 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mahaffey, 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.