Citation Nr: A21017825
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 210831-182791
DATE: November 3, 2021

ORDER

The discontinuation of the 100 percent rating for prostate cancer, effective October 1, 2021, and the change thereafter to a rating based on residuals under DC 7528 were proper.

FINDING OF FACT

By October 1, 2021, the Veteran's treatment for his prostate cancer had stopped, VA had provided the mandatory six-month examination, VA had provided the Veteran notice under 38 C.F.R. § 3.105(e). As the Veteran had no recurrence or metastasis of his prostate cancer, VA rated residuals as voiding or renal dysfunction.

CONCLUSION OF LAW

The criteria for the discontinuation of the 100 percent rating for prostate cancer effective October 1, 2021 are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105, 4.115a, 4.115b, Diagnostic Code 7528.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1969 to June 1971.

A rating decision was issued under the legacy system in July 2020, which continued the Veteran's 100 percent disability rating for prostate cancer status post radical prostatectomy.

In October 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of the July 2020 rating decision, noting, "Request service connection for prostate cancer, currently evaluated at 100 percent be permanent and total." In March 2021, the AOJ issued a rating decision, which proposed that the evaluation of prostate cancer status post radical prostatectomy be decreased from 100 percent disabling to 20 percent disabling.

In July 2021, the AOJ issued the rating decision on appeal, which decreased the evaluation of prostate cancer status post radical prostatectomy from 100 percent disabling to 20 percent disabling effective October 1, 2021.

In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Direct Review option specifically for "reduction of prostate cancer;" therefore, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 

The Board finds that the appeal is limited to the issue of the propriety of discontinuance of the 100 percent rating, based on the specific identification of the "reduction" issue in the NOD. Should the Veteran wish to appeal the 20 percent rating assigned for voiding dysfunction symptoms in the July 2021 rating decision, he is still within the one year appeal period to request review of that rating and may do so.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

Discontinuation of the 100 percent rating for prostate cancer, effective October 1, 2021, and the change thereafter to a rating based on residuals under DC 7528

The Veteran contends that the discontinuation of the 100 percent rating for his prostate cancer, effective October 1, 2021, was improper.

In a May 2019 rating decision, the Veteran's evaluation of prostate cancer status post radical prostatectomy was increased from 20 percent disabling to 100 percent effective October 26, 2018. In March 2021, VA proposed to reduce the 100 percent evaluation for prostate cancer to a 20 percent rating. This reduction was accomplished in a July 2021 rating decision, effective October 1, 2021.

Throughout the Veteran's appeal, this issue has been treated as a reduction; however, the issue is actually determining whether the end of the 100 percent rating for the Veteran's prostate cancer was appropriate under DC 7528.

There are certain situations that are not considered to be rating reduction actions, such that neither the procedural nor the substantive requirements for reduction apply. In Rossiello v. Principi, 3 Vet. App. 430 (1992), the U.S. Court of Appeals for Veterans Claims (Court) held that diagnostic codes requiring assignment of a 100 percent evaluation and then a lower rating after a certain a period of time do not require application of the rating reduction provisions because the 100 percent ceases to exist by operation of the law. The Court explained that such cases should not be treated as a reduction of a rating for a singular condition, but an award of separate ratings for two different conditions after a certain period of time.

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 July 2021 rating decision was not a "rating reduction," as that term is commonly understood. See Rossiello, 3 Vet. App. at 432-33 (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.

When any change in an evaluation is made, it must be clear that the evaluation demonstrates an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the evaluation. 38 C.F.R. § 4.13. The evaluation must be based on a "thorough examination," and the improvement indicated should reflect "an improvement in the Veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 421 (1993).

Prostate cancer warrants a 100 percent evaluation for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b, Diagnostic Code 7528. 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. Id. If there has been no local reoccurrence or metastasis, any residual disability will be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Id.

In Foster v. McDonough, U.S. Vet. App. No. 19-7442 (Oct. 20, 2021), the Court determined that the plain language of DC 7528 imposed four requirements for discontinuing a 100 percent disability rating for prostate cancer. The four requirements were: (1) A claimant's treatment has stopped, (2) VA has provided a mandatory 6-month examination, (3) VA has provided § 3.105(e) notice, and (4) if a claimant has no recurrence or metastasis of his prostate cancer, VA rates residuals as voiding or renal dysfunction. In Foster, the Court found that VA satisfied these requirements and thus correctly discontinued the 100 percent disability rating. Thus, the Board will focus its analysis on whether VA met each of these four criteria and thus correctly discontinued the Veteran's 100 percent disability rating for his prostate cancer.

The Board finds the discontinuation of the 100 percent rating was not a reduction but, rather, a proper change to a rating based on residuals of prostate cancer once the criteria under DC 7528 were met.

The first requirement in properly discontinuing a 100 percent disability rating for prostate cancer is that the claimant's treatment has stopped. 

In a September 2020 letter, the Veteran's urologist wrote,

I am writing this letter to summarize [the Veteran's] care for prostate cancer. He had a robotic radical prostatectomy for prostate cancer in May 2009. His cancer was Gleason 3+4+5 that was confined to the prostate. He subsequently had a rising PSA and had salvage radiation therapy in March 2019. He also had short course androgen deprivation therapy in conjunction with his salvage radiation therapy. He completed seven months of androgen deprivation therapy in June 2019. Prior to radiation therapy his PSA got as high as 0.14. His most recent PSA in July 2020 is 0.10. Although this is a low PSA, this is not much lower than his PSA was before radiation therapy. It leaves us uncertain as to whether salvage radiation therapy has been curative for him. Our plan right now is to observe his PSA and we have no plans for additional therapy right now.

The Veteran's prostate cancer was reevaluated in March 2021. After a review of the claimant's medical history and of all his records, the VA examiner concluded that the Veteran's prostate cancer was in sustained remission, with the most recent treatment for the disorder in March 2019. The examiner noted that treatment was completed and they were currently in the watchful waiting status. 

In a lay statement dated April 2021, the Veteran wrote,

I believe my disability benefits should continue at 100 percent since I have only had one post prostatectomy PSA test less than.10, which is the cut off for determination of remission. Decision to reduce benefits was based on one five minute phone call from a VES Nurse Practitioner. I am enclosing a statement from my urologist saying that while I have had decreasing PSA tests, I have also had complications from the radiation.

In a letter dated April 2021, the Veteran's urologist provided,

He had gross hematuria earlier this year, and a cystoscopy on February 3, 2021 identified abnormal ectatic blood vessels consistent with radiation cystitis, which is a known side effect of prior radiation treatment. We have recommended careful monitoring going forward. If he has recurrent or problematic bleeding, he may require repeat cystoscopy with fulguration of the bleeding blood vessels. Another option would be that he may ultimately require hyperbaric oxygen therapy if he has ongoing or problematic hematuria from radiation cystitis.

The Board acknowledges the Veteran's statement as well as the urologist's April 2021 letter; however, the Board finds that this evidence does not actually speak to whether the prostate cancer itself has improved or not. Rather, this treatment record and the Veteran's lay statement both speak to the residuals the Veteran is experiencing due to his prostate cancer treatment, not the current condition of his prostate cancer, which is in remission. Under Tatum v. Shinseki, 26 Vet. App. 443, 449 (2014) (Tatum II), "the date of 'cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure' refers to the date the Veteran received final treatment for cancer, and does not include treatment for residuals of cancer or the residuals of the treatment for cancer." In this case, the PSA test of .10 noted in July 2020 is evidence that the Veteran's prostate cancer is in remission. While the Board sympathizes with the Veteran because he has experienced complications from his radiation treatment, this evidence is not relevant to the issue of whether the discontinuation of the 100 percent disability rating was proper or improper. Therefore, the Board finds that the first requirement is met as the Veteran's treatment for his prostate cancer has stopped.

The second requirement in properly discontinuing a 100 percent disability rating for prostate cancer is that VA has provided a mandatory 6-month examination. Here, as discussed above, the Veteran was afforded a VA examination in March 2021. The Board finds that examination to be adequately thorough. Significantly, it included a review of the Veteran's records and a discussion of the pertinent medical history. Neither the Veteran nor his representative have made any arguments regarding the adequacy of this examination.

The third requirement in properly discontinuing a 100 percent disability rating for prostate cancer is that VA must provide § 3.105(e) notice to the Veteran. The provisions of 38 C.F.R. § 3.105(e) set forth the procedural requirements for reductions in disability compensation ratings. VA complied with the procedures required under 38 C.F.R. § 3.105(e) by way of a March 2021 letter notifying the Veteran of the proposed rating decrease, including the evidentiary basis for the proposal, as well as his right to submit additional evidence and to appear at a pre-decisional personal hearing. Therefore, the third requirement has been met.

The last requirement in properly discontinuing a 100 percent disability rating for prostate cancer is that if a claimant has no recurrence or metastasis of his prostate cancer, VA must rate residuals as voiding or renal dysfunction. In this case, the Veteran has been awarded a 20 percent disability rating under DC 7528 due to his voiding dysfunction symptoms. Thus, the Board finds that the last requirement has been satisfied.

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Therefore, as the four requirements for discontinuing a 100 percent disability rating for prostate cancer have been met, the Board finds that the discontinuation of the 100 percent rating is warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Minock

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.