Citation Nr: 21068217 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-58 636 DATE: November 9, 2021 ORDER The discontinuance of the 100 percent evaluation for service-connected residuals of prostate cancer was proper and restoration of the 100 percent evaluation effective January 1, 2016 is denied. From January 1, 2016, entitlement to a disability rating in excess of 60 percent for residuals of prostate cancer is denied. FINDINGS OF FACT 1. The discontinuance of the 100 percent evaluation for prostate cancer was not a formal rating reduction, as the "reduction" was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528. 2. From January 1, 2016, the Veteran's residuals of prostate cancer have not manifested as malignant neoplasms of the genitourinary system or renal dysfunction, and he has been in receipt of the maximum schedular rating for voiding dysfunction. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent evaluation for residuals of prostate cancer effective January 1, 2016 was proper. 38 U.S.C. 1155, 5107; 38 C.F.R. §§ 3.105 (e), 4.1, 4.7, 4.115b, Diagnostic Code 7528. 2. From January 1, 2016, the criteria for a rating in excess of 60 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript is on record. In November 2019, the Board remanded the issue of whether the Veteran was assigned an appropriate rating for his prostate cancer residuals from January 1, 2016 for a retrospective VA opinion on the residuals' severity. Based on the findings from a March 2020 VA addendum examination and opinion, the Veteran's evaluation for prostate cancer residuals was increased in August 2020 from noncompensable to 60 percent, effective January 1, 2016. 1. The discontinuance of the 100 percent evaluation for service-connected residuals of prostate cancer was proper and restoration of the 100 percent evaluation effective January 1, 2016 is denied. In this case, the RO granted service connection and a total rating for prostate cancer in April 2014, effective October 10, 2013. In September 2014, the RO proposed that the Veteran's rating be reduced from 100 percent disabling to noncompensable, and in October 2015, the reduction was implemented, to be effective January 1, 2016. The 100 percent evaluation was assigned under 38 C.F.R. § 4.115b, Diagnostic Code 7528, 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 genitourinary dysfunction under 38 C.F.R. § 4.115b. A note after 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, Note. Under 38 C.F.R. § 3.105 (e), where a reduction in an 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 must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, 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 Veteran expires. Id. Initially, the Board considered whether the claim would be more appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, these provisions are not applicable because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 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 the term is commonly understood. Foster v. McDonough, No. 19-7442, 2021 U.S. App. Vet. Claims LEXIS 1848, *14-15 ("When [Diagnostic Code] 7528 is considered within its regulatory structure, it becomes even more apparent that the discontinuance of a 100 [percent] rating under [Diagnostic Code] 7528 is not a rating reduction."); see Rossiello v. Principi, 3 Vet. App. 430 (1992)). The rating reduction in this case was procedural in nature and by operation of law. Therefore, the Board must 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 Diagnostic Code 7528. As discussed further below, the Board finds these requirements have been met. The Veteran was diagnosed with prostate cancer via biopsy in August 2013. In October 2013, the Veteran began direct beam radiation therapy, which concluded on January 2, 2014. The RO issued a rating reduction proposal in September 2014, which set forth material facts and reasons for the proposed reduction. The Veteran was given more than 60 days to respond and present additional evidence. In October 2015, the RO issued a rating decision effectuating the reduction. The reduction was effective January 1, 2016, essentially the last day of the month after expiration of the 60-day period from the date of the notice of the October 2015 final action, as set forth in applicable VA regulation. Thus, the notice requirements for the reduction of the assigned prostate cancer rating were satisfied. See 38 C.F.R. § 3.105 (e). In considering the evidence of record under the law and regulations as set forth above, the Board concludes there is no evidentiary basis for continuing the 100 percent rating for prostate cancer under Diagnostic Code 7528 beyond January 1, 2016. The evidence of record, including pertinent VA treatment records and genitourinary examinations, does not reveal local recurrence of metastasis of the Veteran's prostate cancer. Specifically, VA treatment records from July 2014 and August 2017 note his prostate cancer is in remission. His recent March 2020 VA examination confirms his prostate cancer has stayed in remission since completion of treatment on January 2, 2014. Moreover, while the Board found the Veteran's August 2014 and September 2016 VA genitourinary examinations to be inadequate for the purpose of determining the current severity of the Veteran's prostate cancer residuals, the Veteran reported his prostate cancer to be in remission at both examinations. Further, there is no evidence or allegation that the Veteran underwent radiation, chemotherapy, or other therapeutic procedure after January 2, 2014. Therefore, given the lack of recurrence or metastasis of the Veteran's prostate cancer on or after January 1, 2016, the initial 100 percent rating for prostate cancer was properly discontinued and restoration of the total rating is not warranted. See 38 C.F.R. § 4.115b, Diagnostic Code 7528; Rossiello, 3 Vet. App. at 430. 2. From January 1, 2016, entitlement to a disability rating in excess of 60 percent for residuals of prostate cancer is denied. Having determined the RO correctly followed the process required to discontinue the Veteran's rating, the Board must determine whether the Veteran's prostate cancer residuals warrant a disability rating in excess of 60 percent from January 1, 2016. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the assignment of staged ratings may be warranted where the evidence contains factual findings that demonstrate a change in the severity of symptoms during the course of the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. The Veteran's residuals of prostate cancer are rated under 38 C.F.R. § 4.155b, Diagnostic Code 7528. The note to this diagnostic code directs evaluators to rate residuals of prostate cancer or treatment thereof as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran does not demonstrate any renal dysfunction due to his radical prostatectomy, but rather asserts a predominance of urinary/voiding dysfunction. Since January 1, 2016, the Veteran has been assigned a disability rating of 60 percent, the maximum schedular rating assignable for residuals of prostate cancer under the provisions for rating voiding dysfunction. See 38 C.F.R. § 4.115a. As there is no legal basis upon which to award a schedular evaluation in excess of 60 percent for residuals of prostate cancer under the provisions for voiding dysfunction, a rating in excess of 60 percent must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Regarding renal dysfunction, again the Board notes medical evidence does not show and the Veteran does not contend that he has had renal dysfunction; therefore, the criteria for rating renal dysfunction was not addressed. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.