Citation Nr: 21002314 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-09 392 DATE: January 13, 2021 ORDER The discontinuance of the 100 percent rating for prostate cancer effective from November 1, 2017, was proper. Entitlement to a 60 percent rating for prostate cancer with erectile dysfunction from November 1, 2017, is granted. FINDING OF FACT 1. The Regional Office (RO) observed the procedural safeguards set forth in 38 C.F.R. § 3.105(e) prior to reducing the rating for the Veteran’s prostate cancer. 2. Since March 2016, the evidence of record does not demonstrate that the Veteran underwent any surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures for prostate cancer. There is also no evidence of local reoccurrence or metastasis. 3. Throughout the appeal period, the Veteran’s residuals of prostate cancer with erectile dysfunction was manifested by voiding dysfunction requiring the use and change of absorbent material more than 4 times per day. 4. The Veteran’s erectile dysfunction is productive of loss of erectile power for which he receives special monthly compensation; however, there is no associated penile deformity. CONCLUSION OF LAW 1. The discontinuance of the 100 percent rating for prostate cancer was proper. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.105(e), 4.115b, Diagnostic Code 7528 (2019). 2. The criteria for a 60 percent rating for prostate cancer residuals with erectile dysfunction from November 1, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the proceeding will be associated with the record. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Where a reduction in evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor, and be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 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). Under Diagnostic Code 7528, a 100 percent evaluation is warranted for malignant neoplasms of the genitourinary system. A note to Diagnostic Code 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, Diagnostic Code 7528. Historically, in a June 2016 rating decision, the RO granted service connection for prostate cancer and assigned a 100 percent rating effective February 19, 2016, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528. The RO also granted service connection for erectile dysfunction associated with the prostate cancer and assigned a noncompensable rating effective from February 19, 2016, pursuant to 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522. In a January 2017 rating decision, the RO proposed the reduce the rating assigned for the Veteran’s prostate cancer with erectile dysfunction from 100 percent to 40 percent based on findings from a January 2017 VA examination. In an August 2017 rating decision, the RO effectuated the proposed reduction effective from November 1, 2017. In September 2017, the Veteran submitted a notice of disagreement with the reduction and rating assigned for his prostate cancer with erectile dysfunction. Thereafter, a statement of the case was issued in January 2018, and the Veteran perfected an appeal. 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, Diagnostic Code 7528 contains a temporal element for the continuance of a 100 percent rating. Therefore, the August 2017 rating decision was not a “rating reduction,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). In other words, this is essentially a staged rating case rather than a formal reduction case because of the temporal element of Diagnostic Code 7528. The Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e). In this regard, in January 2017, the RO provided the Veteran with a letter notifying him of the proposed reduction in the corresponding rating decision, his right to present additional evidence within 60 days, and his right to request a hearing. The August 2017 rating decision that effectuated the reduction was not issued until the appropriate time period had elapsed, and the effective date of the reduction was assigned in accordance with applicable criteria. Thus, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were met. In June 2016 and January 2017 VA examination reports, the examiners concluded that the Veteran’s prostate cancer was in remission. The examiners also noted that the Veteran completed his treatment for prostate cancer and that he was currently in watchful waiting status. The Veteran’s VA medical records show that he was diagnosed with prostate cancer in December 2015. He underwent a radical prostatectomy in March 2016. See June 2016 VA examination. There is no indication that the Veteran underwent surgical, x-ray, antineoplastic chemotherapy, or any other therapeutic procedures after March 2016. Therefore, the date of cessation of treatment for prostate cancer is March 2016. The RO afforded the Veteran a mandatory VA examination in January 2017, which was well over six months after the cessation of his treatment for prostate cancer, as required by 38 C.F.R. § 4.115b, Diagnostic Code 7528. The RO also continued a 100 percent rating for prostate cancer for over six months after the Veteran’s cessation of treatment. The June 2016 and January 2017 VA examiners both concluded that the Veteran’s prostate cancer was in remission. Moreover, the evidence of record does not suggest that there has been any recurrence or metastasis, and the Veteran and his representative have not contended otherwise. As such, given the lack of recurrence or metastasis of the prostate cancer, the 100 percent evaluation for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b, Diagnostic Code 7528; Rossiello v. Principi, 3 Vet. App. 430 (1992). Turning to the increased rating claim for the Veteran’s prostate cancer since the discontinuance of his 100 percent rating beginning November 1, 2017, the Board finds that a 60 percent rating is warranted. Under Diagnostic Code 7528, if there has been no local reoccurrence or metastasis, a claimant is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115(b), Diagnostic Code 7528. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Only the predominant area of dysfunction is considered for rating purposes. Id. For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 40 percent rating is warranted for a condition requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is warranted for a condition requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. For urinary frequency, a maximum 40 percent rating is warranted for daytime voiding interval less than one hour, or; awakening to void five or more times per night. Id. A rating based on obstructed voiding only allows for a maximum of 30 percent rating. Id. Under Diagnostic Code 7522, a 20 percent rating is assigned when there is evidence of deformity of the penis with loss of erectile power. A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to special monthly compensation for loss of use of a creative organ under 38 C.F.R. § 3.350(a). However, in this case, the Veteran has already been awarded special monthly compensation based on the loss of use of a creative organ. In a January 2017 VA examination, the examiner noted that the Veteran had a voiding dysfunction that caused urine leakage requiring absorbent material which must be changed 2 to 4 times per day. The Veteran’s voiding dysfunction also caused increased urinary frequency manifested by daytime voiding intervals between 1 and 2 hours, and nighttime awakening to void 3 to 4 times. The Veteran did not require the use of an appliance to treat his voiding dysfunction and there were no signs or symptoms of obstructive voiding. The examiner also indicated that the Veteran did not have any renal dysfunction due to his residuals of prostate cancer. The Board acknowledges that the January 2017 VA examination indicated that the Veteran’s voiding dysfunction caused urine leakage that required absorbent material to be changed 2 to 4 times per day. Nevertheless, during the January 2021 Board hearing, the Veteran testified that he changed the absorbent material for his urinary leakage about 7 times per day for the past 4 to 5 years. The Veteran stated that he needed to change the absorbent material 4 times during the daytime since his radical prostatectomy, but he also needed to change the material at night. The Board finds the Veteran’s testimony probative and credible. In light of the foregoing, the Board finds that the Veteran’s prostate cancer residuals caused voiding dysfunction that required absorbent material more than 4 times per day throughout the appeal period. Therefore, the Board finds that a 60 percent rating is warranted for the service-connected prostate cancer residuals with erectile dysfunction. See 38 C.F.R. § 4.115a. The Board observes that a 60 percent evaluation is the maximum rating available to voiding dysfunction and higher evaluations are not available for urinary frequency or obstructed voiding. Moreover, there is no indication that the Veteran has any renal dysfunction. In fact, the January 2017 VA examiners indicated that there was no renal dysfunction due to the service-connected disability. As such, a 60 percent rating represents the maximum schedular rating available. See 38 C.F.R. § 4.115a. The Board has also considered whether a separate compensable rating is warranted for erectile dysfunction. The Veteran clearly has loss of erectile power. See January 2017 VA examination. However, the evidence does not reveal any physical deformity of the Veteran’s penis. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). That is, the requirement under Diagnostic Code 7522 of deformity of the penis “with” loss of erectile power clearly means that both factors are required. The Veteran has not reported, and the evidence does not document, any penile deformity. Indeed, the January 2017 VA examiner attributed the Veteran’s erectile dysfunction to his March 2016 radical prostatectomy, rather than any deformity. Therefore, a separate compensable rating under Diagnostic Code 7522 would not be warranted. In addition, other diagnostic codes for the penis/testes that provide a rating greater than zero percent are not more appropriate because the facts of the case do not support their application. 38 C.F.R. § 4.115b, Diagnostic Code 7520 (removal of half the penis); Diagnostic Code 7521 (removal of the penis glans); Diagnostic Code 7523 (atrophy of the testes); or Diagnostic Code 7524 (removal of the testes). See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Therefore, the Board finds that the Veteran’s erectile dysfunction is properly evaluated as a noncompensable residual of his prostate cancer. The Board has also considered whether a separate compensable rating is warranted for scars associated with the Veteran’s residuals of prostate cancer. The January 2017 VA examiner noted that the Veteran’s scars were not painful or unstable, did not have a total area equal to or greater than 39 square centimeters (6 square inches), and were not located on the head, face, or neck. As such, a compensable rating would not be warranted under any diagnostic code relating to scars. 38 C.F.R. §§ 4.118, DCs 7800-7805. The Board also notes that the Veteran reported having a psychiatric disorder and headaches due to his service-connected prostate cancer. See February 2018 and April 2018 supplemental claims. However, the Veteran’s claims for service connection for those disorders were separately adjudicated in a May 2018 rating decision. (Continued on the next page)   In summary, the Board finds that the Veteran’s residuals of prostate cancer with erectile dysfunction has been manifested by voiding dysfunction that required absorbent material more than 4 times per day. Accordingly, a 60 percent disability rating is warranted since November 1, 2017. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.