Citation Nr: 21066193 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-23 834 DATE: October 28, 2021 ORDER The discontinuance of the 100 percent disability rating for residuals of prostate cancer effective October 1, 2013, was proper. Entitlement to a disability rating in excess of 60 percent for residuals of prostate cancer from October 1, 2013 is denied. FINDING OF FACT 1. The discontinuance of the 100 percent disability rating for prostate cancer was not a formal rating reduction, but a change in rating assignment by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528. 2. The procedural requirements of 38 C.F.R. § 3.105(e) were appropriately followed in this case. 3. From October 1, 2013, the competent and probative evidence shows no local reoccurrence or metastasis of prostate cancer or residual renal dysfunction; the evidence does reflect that residuals of prostate cancer were manifested by voiding dysfunction warranting 60 percent rating. CONCLUSION OF LAW The criteria for the discontinuance of the 100 percent rating for prostate cancer, and the assignment of a 60 percent for voiding dysfunction, effective October 1, 2013 was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.115(b), Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2016 substantive appeal, in addition to the issue on appeal, the Veteran also appealed the denial of service connection for posttraumatic stress disorder (PTSD) and entitlement to a total disability rating based on individual unemployability (TDIU). In a January 2017 rating decision, the RO awarded service connection for PTSD and granted entitlement to a TDIU, which represents a full grant of the pertinent benefits sought on appeal, and therefore, no additional benefits are available to the Veteran under relevant VA law for these issues. Additionally, in the same May 2016 substantive appeal, the Veteran had requested a hearing before the Board. An initial hearing scheduled for June 19, 2019 was postponed as the Veteran was hospitalized. Another hearing scheduled for August 26, 2019 was not held as the Veteran did not appear for the hearing. The Veteran was scheduled for a hearing on September 22, 2021 but it was later cancelled by the Veteran. Based on the Veteran's most recent response, the Board finds that the Veteran has properly withdrawn his hearing request and the Board will proceed to adjudicate the matter. 38 C.F.R. § 20.603(d). 1. Propriety of the Discontinuance of the 100 Percent Rating for Prostate Cancer The Veteran contends that the reduction of the evaluation of prostate cancer from 100 percent disabling to 60 percent, effective October 1, 2013, was improper. See October 2021 Substantive Brief. By way of background, a February 2010 rating decision granted entitlement to service connection for prostate cancer and assigned a 100 percent rating effective July 14, 2009. The rating decision included a notification that the 100 percent rating would continue with a mandatory VA examination at the expiration of six months, and that any change in evaluation based on that examination, or any subsequent examination, would be rated based on residuals of the disability at the time of the examination. In a June 2012 rating decision, the RO proposed to decrease his disability rating to 40 percent, with the mailed notification letter sent in July 2012. The Veteran requested a hearing on August 2012. Later, in a January 2013 statement, the Veteran cancelled his request for a hearing and instead asserted that his prostate cancer meets the disability criteria of 60 percent. In a July 2013 rating decision, the RO reduced his disability rating for prostate cancer from 100 percent to 60 percent effective October 1, 2013. The rating reduction provisions of 38 C.F.R. §§ 3.343 and 3.344 are not applicable in the present case. Here, the discontinuance of the 100 percent disability rating for service-connected prostate cancer was accomplished pursuant to the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528. In that regard, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer or its residuals. Therefore, the action taken by the Agency of Original Jurisdiction (AOJ) was not a "rating reduction," as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992); Foster v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1848. Rather, the discontinuance of the 100 percent rating was procedural in nature and by operation of law. Thus, the Board need only determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the discontinuance of the 100 percent rating was proper by operation of law under Diagnostic Code 7528. The Board finds that there was compliance with the requisite procedural matters pursuant to 38 C.F.R. § 3.105(e). In that regard, the RO proposed the reduction in a June 2012 rating decision, with a mailed notice sent in July 2012. The Veteran withdrew his request for a predetermination hearing, and a July 2013 rating decision reduced his rating to 60 percent effective October 1, 2013. The July 2013 rating decision that effectuated the reduction was not issued until the appropriate time period had elapsed, and the effective date of the discontinuance of the 100 percent rating was assigned in accordance with the applicable criteria. Thus, the Board finds that the RO complied with procedural requirements of 38 C.F.R. § 3.105(e). The next question is whether the reduced rating was supported by the evidence at the time of the rating decision. The Veteran's prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 under malignant neoplasms of the genitourinary system. Diagnostic Code 7528 provides for a 100 percent disability rating with Note (1) providing that following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months and that any change in evaluation be based upon that or any subsequent examination subject to 38 C.F.R. § 3.105(e) of this chapter and that if there has been no local reoccurrence or metastasis, the Veteran's prostate cancer shall be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran presented for a VA examination in June 2012. The Veteran reported that he had a history of prostate cancer since May 2009 and had undergone an external beam radiation therapy which was completed in December 2009. He indicated that he had a good response to the radiotherapy for the prostate cancer but had residual urinary symptoms and erectile dysfunction. He was not currently on any active treatment for the prostate cancer. The examiner opined that the Veteran's prostate cancer was in remission. The examiner noted that the Veteran had completed treatment and was currently in watchful waiting status. The Veteran had voiding dysfunction with lower urinary tract symptoms preceded by the radiotherapy and that the treatment had worsened his voiding dysfunction. The voiding dysfunction caused urine leakage and thus the Veteran wore an absorbent garment at night. He did not require the use of an appliance. His voiding dysfunction caused urinary frequency including daytime voiding interval between 1 and 2 hours and nighttime awakening to void 5 or more times. The voiding dysfunction caused symptoms of obstructed voiding which included hesitancy, markedly slow or weak stream, and markedly decreased force of stream. He did not have a history of recurrent symptomatic urinary tract or kidney infections. Overall, the Board finds that the evidence shows that the Veteran's prostate cancer was in full remission at the time of the June 2012 VA examination and that the Veteran had completed radiotherapy in December 2009. As the evidence reflects no local reoccurrence 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); Foster v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1848. The Board next address the increased rating claim for the Veteran's prostate cancer since the discontinuance of his 100 percent effective October 1, 2013. The Veteran is currently assigned a 60 percent rating, the maximum rating available, for residuals of prostate cancer effective October 1, 2013. 38 C.F.R. § 4.115a. Under Diagnostic Code 7528, if there has been no local reoccurrence or metastasis, the Veteran's prostate cancer shall be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. The June 2012 VA examiner noted that the Veteran had voiding dysfunction and there was no indication of renal dysfunction. Under 38 C.F.R. § 4.115a, Ratings of the Genitourinary Systems Dysfunctions, voiding dysfunction can be rated according to urine leakage, frequency, or obstructed voiding. Regarding urine leakage, a 60 percent disability rating is warranted for requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Voiding dysfunction that manifests as urinary frequency warrants a 40 percent disability rating when daytime voiding intervals are less than one hour, or awakening to void five or more times per night. A 20 percent disability contemplates daytime voiding intervals between one and two hours, or awakening to void three to four times per night. A 10 percent disability rating is warranted when daytime voiding intervals are between two and three hours, or awakening to void twice per night. Id. Voiding dysfunction that manifests as obstructed voiding warrants a 30 percent disability rating when urinary retention requires intermittent or continuous catheterization. A 10 percent disability rating contemplates marked obstructive symptomatology, such as hesitancy, slow or weak stream, 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/second; (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilation every two to three months. A noncompensable disability rating is warranted when obstructive symptomatology with or without structure disease requires dilation one to two times per year. Id. Voiding dysfunction that manifests as urinary tract infection warrants a 30 percent disability rating when there is recurrent symptomatic infection requiring drainage or frequent hospitalization (greater than two times per year) or requiring continuous intensive management. A 10 percent disability rating for urinary tract infection is warranted when the disability requires long-term drug therapy, one to two hospitalizations per year, or intermittent intensive management. Id. As noted above, during the June 2012 VA examination, the Veteran had voiding dysfunction from the lower urinary tract symptoms. His voiding dysfunction caused urine leakage and the Veteran had to wear absorbent garment at night but did not require the use of an appliance. His voiding dysfunction also caused urinary frequency including daytime voiding interval between 1 and 2 hours and nighttime awakening to void 5 or more times. Symptoms of obstructed voiding include hesitancy, markedly slow or weak stream, and markedly decreased force of stream. The Veteran underwent a VA examination in August 2013. The examiner noted that the Veteran's prostate cancer was in remission, and that he had completed radiation therapy in 2011. The examiner noted that the Veteran had voiding dysfunction that caused urine leakage requiring absorbent material which must be changed 2 to 4 times per day. The examiner further noted that the Veteran did not require the use of an appliance. His voiding dysfunction caused increased urinary frequency to include daytime voiding interval between 1 and 2 hours and nighttime awakening to void 5 or more times. There were no additional signs or symptoms of obstructed voiding noted. The Veteran did not have any other residual conditions and/or complications from his prostate cancer. The Veteran was afforded another VA examination in March 2015. The examiner noted that the Veteran's prostate cancer was in remission, and he had undertaken radiation therapy in late 2009. The examiner noted that the Veteran had voiding dysfunction that caused urine leakage requiring absorbent material which must be changed more than 4 time per day. He did not require the use of an appliance. Voiding dysfunction increased urinary frequency such as daytime voiding interval less than 1 hour and nighttime awakening to void 5 or more times. Symptoms of obstructed voiding included marked hesitancy, markedly slow stream, markedly weak stream, markedly decreased force of stream, and post void dripping. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. The Veteran did not have any renal dysfunction. Based on the foregoing, the Board finds that prostate cancer residuals caused voiding dysfunction and the Veteran's symptoms meet the 60 percent rating, the currently assigned rating and the highest evaluation under the rating criteria for 38 C.F.R. § 4.115a. The evidence does not show renal dysfunction as a residual of his prostate cancer, and the Veteran is currently receiving a separate rating for erectile dysfunction. In summary, the Board finds that the discontinuance of the 100 percent disability rating for the Veteran's prostate cancer was proper. There has been no local reoccurrence or metastasis of his prostate cancer. The Board further finds that the Veteran is properly assigned a 60 percent rating for voiding dysfunction, the maximum rating available for voiding disfunction. 38 C.F.R. § 4.115a. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.