Citation Nr: 21073234 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-39 527 DATE: December 7, 2021 ORDER Entitlement to a rating in excess of 60 percent, to include restoration of a 100 percent rating, for residuals of prostate cancer effective November 1, 2017, is denied. FINDINGS OF FACT 1. The discontinuance of the 100 percent rating for prostate cancer is not a formal rating reduction in this case, as the "reduction" was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528. 2. As of November 1, 2017, the evidence of record does not demonstrate that the Veteran continued to receive any surgical, X-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer, such that continued application of a 100 percent rating for residuals of prostate cancer were appropriate under Diagnostic Code 7528. 3. Beginning November 1, 2017, the Veteran's service-connected residuals of prostate cancer have been manifested by voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, but no renal dysfunction. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent rating for residuals of prostate cancer, effective November 1, 2017, was proper. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, Diagnostic Code 7528 (2020). 2. The criteria for a rating in excess of 60 percent for residuals of prostate cancer beginning November 1, 2017, are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1968 to January 1970. This case comes before the Board of Veterans' Affairs (Board) on appeal from an August 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Disability Rating Prostate Cancer From July 11, 2014, to November 1, 2017, an initial 100 percent rating was assigned for the Veteran's prostate cancer diagnosis with active malignancy and treatment. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. 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. As found above, the discontinuance of a 100 percent rating for prostate cancer pursuant to the procedures set out in Diagnostic Code 7528 and the accompanying Note is not a rating reduction requiring VA to follow the special procedures associated with rating reductions. Foster v. McDonough, No. 19-7442, 2021 U.S. App. Vet. Claims LEXIS 1848 (Vet. App. Oct. 20, 2021). In this case, the Veteran submitted a Disability Benefits Questionnaire for prostate cancer, completed by his private physician, in July 2014. At that time, it was noted that his prostate cancer had just been diagnosed and that he was scheduled for a bone scan and would determine treatment options after that. Private and VA treatment records indicated that he underwent brachytherapy/radiation in September 2014. In March 2016, he was afforded another VA examination at which time his prostate cancer was noted to be in remission. Thereafter, by way of a March 2016 VA rating decision, the RO proposed reducing his 100 percent rating to 20 percent on the basis of that examination showed that his prostate cancer was no longer active. The Veteran was informed of his rights, including his right to a predetermination hearing and to submit additional evidence. No response was submitted by the Veteran or his representative regarding the proposed reduction. The RO finalized the discontinuance of the Veteran's 100 percent rating for prostate cancer in an August 2017 rating decision and assigned a 60 percent rating for residuals of prostate cancer, effective November 1, 2017. The Veteran was notified of that reduction by letter dated in August 2017. 38 C.F.R. § 3.105(e). In light of those facts, the Board finds that the procedure for discontinuing the Veteran's 100 percent evaluation for his prostate cancer was appropriately and adequately completed. Id. In considering the evidence of record under the laws and regulations as set forth above, the Board further concludes there that is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under Diagnostic Code 7528 after November 1, 2017. See 38 C.F.R. § 4.7. The Veteran completed radiation treatment for prostate cancer in September 2014. In March 2016, he underwent a VA prostate cancer examination at which time it was noted that his prostate cancer was in remission. During the September 2021 Board hearing, the Veteran stated that his prostate cancer continued to be in remission. Beginning November 1, 2017, the Veteran's service-connected residuals of prostate cancer have been evaluated as 60 percent disabling based on voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under 38 C.F.R. § 4.115a, a 60 percent rating is assigned for voiding dysfunction that requires the use of an appliance or wearing of absorbent materials which must be changed more than 4 times per day. A 60 percent rating is the highest schedular rating available for voiding dysfunction. The evidence does not show nor has the Veteran argued entitlement to an extraschedular rating. The Board also notes that there has been no evidence of renal dysfunction resulting from the Veteran's prostate cancer. For these reasons, the Board finds that a rating in excess of 60 percent is not warranted. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.