Citation Nr: 21063409 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-17 010 DATE: October 14, 2021 ORDER The 100 percent disability rating for adenocarcinoma of the prostate (prostate cancer) is restored, effective December 1, 2017. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), from December 1, 2017, forward, is granted. FINDINGS OF FACT 1. The reduction of the Veteran's disability rating for his service-connected prostate cancer from 100 percent to 40 percent, effective December 1, 2017, was based on a VA medical treatment note, rather than the VA examination required 6 months following the cessation of the Veteran's chemotherapy treatment. 2. From December 1, 2017, forward, the Veteran's service-connected prostate cancer is in receipt of a total disability rating, and additional service-connected disabilities apart from his prostate cancer are ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The reduction in the rating for the service-connected prostate cancer from 100 percent to 40 percent effective December 1, 2017, was improper, and restoration of the 100 percent rating is warranted effective from that date. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.326, 3.344, 4.115(b), Diagnostic Code (DC) 7528. 2. From December 1, 2017, forward, the criteria for SMC under 38 U.S.C. § 1114(s) are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1970 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the disability rating for adenocarcinoma of the prostate from 100 percent to 40 percent, effective from December 1, 2017. See September 2017 Rating Decision (additionally discontinuing SMC pursuant to 38 U.S.C. § 1114(s) from December 1, 2017). The Board remanded the appeal in July 2019 and in September 2020. The case has once again returned to the Board. 1. Reduction of the disability rating for prostate cancer from 100 percent to 40 percent effective from December 1, 2017, forward. The Veteran has challenged the propriety of the reduction of the rating for his prostate cancer from 100 percent to 40 percent. For the reasons that follow, the Board finds that restoration of the 100 percent rating from December 1, 2017, is warranted. Initially, the Board notes that the provisions of 38 C.F.R. § 3.105(e) allow for a reduction in the evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. See also VAOPGCPREC 71-91 (Nov. 1991), VAOPGCPREC 29- 97 (Aug. 1997). First, there must be a rating action proposing the reduction, and the Veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. If a hearing is not requested, and reduction is found warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105 (e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). All due process requirements have been satisfied in this case. Specifically, a July 2015 rating decision proposed to reduce the evaluation for the Veteran's service-connected prostate cancer from 100 percent to 40 percent, and the Veteran was also sent a letter in July 2015 notifying him of the proposed reduction. In the letter, the RO advised the Veteran that he had (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level and (2) that he had 30 days to request a predetermination hearing. The RO also notified the Veteran that this reduction would reduce his overall disability rating (for his combined service-connected disabilities) from 100 percent to 90 percent. Subsequent to this notice, additional VA medical records were received. Then, the RO issued a final rating decision in September 2017, which reduced the rating to 40 percent effective December 1, 2017. Notice was sent to the Veteran later that month. The Board observes that December 1, 2017, is greater than 60 days after the last day of the month in which a 60-day period from the date of September 2017 notice to the Veteran of the final action expired. The Board thus finds that all due process requirements under § 3.105(e) were satisfied. Moreover, at the time of the rating reduction, the 100 percent evaluation assigned to the Veteran's prostate cancer had been in effect from July 17, 2014. See November 2014 Rating Decision (awarding service connection for prostate cancer and assigning a 100 percent evaluation effective from July 17, 2014). As the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b), which provide additional regulatory hurdles to rating reductions for disabilities that have become "stabilized," do not apply. Rather, the provisions of 38 C.F.R. § 3.344(c), which pertains to disabilities that have not become stabilized and are likely to improve, provide that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. Specifically, re-examinations disclosing improvement in such disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In this regard, not only must it be determined that an improvement in a disability has actually occurred, but also that such improvement reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See id. ; Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). VA is required to establish by a preponderance of evidence that the rating reduction is warranted. See Brown, 5 Vet. App. at 421 ; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995) (holding that the burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence). A reduction in rating must be based upon review of the entire history of a veteran's disability. See Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. See Faust v. West, 13 Vet. App. 342, 349 (2000); see also Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). A reduced evaluation contemplates a situation where an actual change in the disability has occurred and not merely a difference in thoroughness of the examinations or in use of descriptive terms. See Brown, 5 Vet. App. at 420-21. In short, three questions must be addressed in determining whether a rating reduction was warranted by the evidence. Id. at 421. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Id. Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Id. Third, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point may include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). Importantly, the reduction of a rating must have been supported by the evidence on file at the time of the reduction, rather than only by post-reduction evidence. However, pertinent post-reduction evidence favorable to restoring the rating must also be considered and may show that the rating reduction was improper. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Regarding prostate cancer, specifically, a note in 38 C.F.R. § 4.115b, DC 7528, provides that, following the cessation of surgical, X-ray, antineoplastic, chemotherapy, or other therapeutic procedure, a 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. The United States Court of Appeals for Veterans Claims has consistently held that when an RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). When a rating reduction is made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. Based on a review of the evidence of record, the Board finds that the reduction of the Veteran's 100 percent disability rating to 40 percent was improper, as the applicable regulatory requirements were not followed prior to the reduction. Here, the record reflects that the Veteran underwent therapeutic treatment for prostate cancer until October 2014. See, e.g., February 2016 VA Urology Clinic Note (noting that the Veteran completed radiation therapy (XRT) for his prostate cancer in October 2014); October 2014 Prostate Cancer Disability Benefits Questionnaire (DBQ) (performed for the purpose of establishing service-connection and reflecting that the Veteran completed "40 treatments of XRT," with his final treatment occurring two days before he reported for the VA examination). However, the Veteran was not afforded a mandatory VA examination at the expiration of six months following the cessation of his radiation therapy. 38 C.F.R. § 4.115b, DC 7528. Instead, the RO based this reduction on VA urology clinic notes dated in June 2015 and February 2016 indicating that the Veteran reported that he "completed radiation therapy in October 2014" and reflecting no reoccurrence of prostate cancer. See September 2017 Rating Decision. However, despite the brief statements concerning the Veteran's reported history, it cannot be said that the VA urology clinic notes that formed the basis of the AOJ's reduction of the Veteran's rating were sufficiently thorough so as to be considered adequate to support a reduction in the absence of a VA compensation examination, especially given that the VA clinicians did not review the Veteran's claims file in conjunction with the provision of medical treatment. See Brown, 5 Vet. App. at 420-21 (reflecting that reductions must be based upon thorough and adequate examinations and must include a review of the entire history of a veteran's disability); see also Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Further, although a VA genitourinary examination was eventually conducted in August 2021, that examination cannot form the basis of a reduction effective nearly four years earlier. Thus, the Board finds that this reduction was made without following the applicable regulations, specifically that which mandates the provision of a reexamination six months following the discontinuance of therapeutic treatment. See 38 C.F.R. § 4.115b , DC 7528. The reduction is therefore void ab initio, and restoration of the 100 percent rating for prostate cancer from December 1, 2017, is warranted. 2. Entitlement to SMC under 38 U.S.C. § 1114(s) from December 1, 2017, forward. Pursuant to 38 U.S.C. § 1114 (s), when a veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). The United States Court of Appeals for Veterans Claims has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). As detailed above, the Board has restored the 100 percent rating for the Veteran's prostate cancer, effective from December 1, 2017. Because the Veteran now has a service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more during the entire period since December 1, 2017, the criteria for entitlement to special monthly compensation under 38 U.S.C. § 1114(s) are satisfied. Accordingly, entitlement to SMC at the (s) rate is granted from December 1, 2017, forward. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.