Citation Nr: 21072904 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-07 926 DATE: December 6, 2021 ORDER Restoration of a 100 percent rating for prostate cancer, status post radical prostatectomy, is granted effective November 1, 2017, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran underwent surgery for prostate cancer; however, it is at least as likely as not that the surgery was unsuccessful in completely eliminating the original malignancy. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the reduction in the rating for the residuals of prostate cancer, from 100 to 40 percent, effective November 1, 2017, was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1966 to January 1969, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to restoration of a 100 percent rating for prostate cancer, status post radical prostatectomy, effective November 1, 2017 The Veteran contends that the reduction in the 100 percent rating for his prostate cancer was improper. He testified at the July 2021 Board hearing that the prostatectomy he underwent did not remove all of the cancer, that there were still active cancer cells, and that his private provider told him that he had not been cured of the cancer. In a November 2021 Informal Hearing Presentation, the Veteran contended that his cancer was still active, and that the reduction of his 100 percent rating was therefore improper. By way of background, in a May 2016 rating decision, service connection for prostate cancer, status post radical prostatectomy (rated under Diagnostic Code 7528) was granted, and a 100 percent rating assigned, effective January 29, 2016. In August 2016, the Veteran underwent a VA examination to assess the severity of his prostate cancer. Thereafter, the agency of original jurisdiction (AOJ) proposed to reduce the disability rating for the Veteran's prostate cancer from 100 to 10 percent in an October 2016 rating decision. The AOJ notified the Veteran of the proposed reduction by letter dated that same month. In August 2017, the AOJ issued a rating decision effectuating the reduction, effective November 1, 2017. The Veteran subsequently appealed with respect to the propriety of the reduction by submitting a notice of disagreement in December 2017. Thereafter, in January 2018, the AOJ increased the rating for the Veteran's prostate cancer from 10 to 40 percent, effective November 1, 2017. The Board has considered whether the issue on appeal would be most appropriately characterized as an ordinary reduction under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, those provisions are not applicable here. This is because the provisions of 38 C.F.R. § 4.115b, DC 7528, contain a temporal element for continuance of a 100 percent rating for cancer of the genitourinary system. See Foster v. McDonough, No. 19-7442, 2021 U.S. App. Vet. Claims LEXIS 1848, 2021 WL 4891677 (Oct. 20, 2021) (holding that VA regulations regarding rating reductions, in particular 38 C.F.R. § 3.343(a), do not apply to DC 7528); 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) contained a temporal element for that 100 percent rating). Nevertheless, the Board must determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was otherwise proper under Diagnostic Code 7528. There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The RO must also notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). Under DC 7528, pertaining to malignant neoplasms of the genitourinary system, a 100 percent rating is assigned for active malignancy. Following the cessation of surgical, X-ray, antineoplastic chemotherapy, or therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change based upon that or subsequent examination shall be subject to the provisions of 3.105(e). If there is no local reoccurrence or metastasis, the condition is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. In this case, in the October 2016 rating decision, the RO proposed to discontinue the 100 percent rating for prostate cancer and assign the Veteran a 10 percent rating for residuals. In an October 2016 letter, the Veteran was advised of the proposal. In the letter, the AOJ advised the Veteran that he had 60 days to submit new evidence and that he could have a personal hearing. When the discontinuance was effectuated in August 2017, it was not made effective until November 1, 2017. The record establishes that the AOJ complied with all procedural requirements set forth in 38 C.F.R. § 3.105. Next, the Board must consider whether the evidence establishes that the discontinuance was factually proper. As stated before, under DC 7528, a 100 percent rating is warranted for malignancy. While the term "active" does not appear in the DC, the DC instructs adjudicators to assign a 100 percent rating for "malignant neoplasm of the genitourinary system." Under a plain reading of the DC, the presence of a malignant neoplasm of any size warrants a 100 percent rating. Here, the Veteran underwent a radical prostatectomy in December 2015. In August 2016, he underwent a VA examination to assess the severity of his prostate cancer. The examiner noted that following the prostatectomy, the Veteran was quite incontinent for a while but that he performed exercises and that the condition improved steadily. The examiner noted residual problems including erectile and voiding dysfunction and indicated that the disease was in remission. In September 2017, a record from the Veteran's private provider, M.K., M.D. noted that the Veteran's prostate-specific antigen (PSA) was less than 0.1. While Dr. K. found that the Veteran's PSA was normal, he also stated that final pathology showed that the Veteran's cancer was not completely cured and that it would come back in the future. In February 2018, another record from Dr. K. shows a diagnosis of primary prostate malignancy. Dr. K. stated that the Veteran's PSA was again less than 0.1, but that the final pathology showed margin positive at the bladder neck and apical site, that the Veteran was not completely cured, and that he might need radiation treatment in the future. In light of Dr. K.'s September 2017 and February 2018 treatment records, findings, and diagnosis of prostate malignancy, the Board finds that the reduction in the Veteran's prostate cancer from 100 to 40 percent, effective November 1, 2017, was improper. Dr. K.'s September 2017 and February 2018 records show that the surgical procedure employed to treat the Veteran's malignant neoplasm was not fully successful in eradicating the original malignant neoplasm. That is to say, final pathology reports showed that it was likely that some portion of the malignancy remained after the December 2015 surgical prostatectomy. As Dr. K.'s statements and objective testing show that portions of the original the malignant neoplasm are likely still present, the Board finds that the evidence reasonably demonstrates that the Veteran still has active malignancy, and that a 100 percent rating is therefore warranted. The Board acknowledges that the August 2016 VA examiner found that the Veteran's cancer was in remission, and that the claims file demonstrates that the Veteran is not currently undergoing any active surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures for his prostate cancer. However, the key issue before the Board is whether the reduction in the Veteran's rating was proper. In any event, the August 2016 VA examiner does not appear to have considered the question of whether the Veteran had a remaining malignancy after surgery, and he did not address Dr. K.'s September 2017 and February 2018 treatment records which demonstrate that the Veteran likely still has a malignant neoplasm of the genitourinary system. The appropriate remedy in this case is a restoration of the 100 percent rating for the entire period on appeal, effective November 1, 2017. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996). The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.