Citation Nr: 21073383 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-06 490 DATE: December 8, 2021 ORDER Entitlement to special monthly compensation (SMC) based on housebound criteria being met since May 1, 2018 is denied. The discontinuation of the 100 percent rating for prostate cancer, effective May 1, 2018, was proper. Entitlement to an evaluation of 40 percent for prostate cancer from May 1, 2018 to July 18, 2021 is granted. Entitlement to an evaluation in excess of 40 percent for prostate cancer from May 1, 2018 to the present is denied. Entitlement to SMC for loss of use of a creative organ is denied. FINDINGS OF FACT 1. Since May 1, 2018, the Veteran did not have a single service-connected disability rated as total with additional service-connected disability or disabilities independently ratable at 60 percent or more, nor was he permanently housebound by reason of service-connected disability or disabilities. 2. By May 1, 2018, 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. 3. From May 1, 2018, the Veteran's prostate cancer remained in remission and was manifested by residuals requiring the wearing of absorbent materials needing to be changed two to four times per day, or by daytime voiding intervals of less than an hour, awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. 4. From May 1, 2018, the Veteran's prostate cancer remained in remission and was not manifested by residuals requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 5. The evidence does not show loss of use, or actual loss, of a creative organ and the Veteran's prostate cancer was not treated by radical prostatectomy. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC based on housebound criteria being met since May 1, 2018 have not been met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. § 3.350, 4.30. 2. The criteria for the discontinuation of the 100 percent rating for prostate cancer effective May 1, 2018 are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for entitlement to an evaluation of 40 percent for prostate cancer from May 1, 2018 to July 18, 2021 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.115a, 4.115b Diagnostic Code 7528. 4. The criteria for entitlement to an evaluation in excess of 40 percent for prostate cancer from May 1, 2018 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.115a, 4.115b Diagnostic Code 7528. 5. The criteria for SMC for loss of use of a creative organ are not met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to April 1984. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated February 2018 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In June 2021, the Board remanded the Veteran's prostate cancer and SMC claims to the Agency of Original Jurisdiction (AOJ) for additional development. 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). 1. Entitlement to SMC based on housebound criteria being met since May 1, 2018 The Veteran contends that he is entitled to an award of SMC based on housebound status since May 1, 2018. Special monthly compensation may be awarded at the housebound rate if a Veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). A Veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout his lifetime. Id. The Veteran has not contended that he was substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to service-connected disability since May 1, 2018, nor does the evidence for consideration indicate this to be the case. The February 2018 rating decision on appeal discontinued entitlement to SMC from May 1, 2018, because the criteria regarding housebound were no longer met once the assignment of the temporary 100 percent rating for residuals of prostate cancer was reduced to a 20 percent rating. An extension of the temporary 100 percent rating is not warranted after May 1, 2018. Accordingly, for the period since May 1, 2018, the Veteran did not have a single service-connected disability rated as total to support entitlement to SMC based on housebound status. Thus, the evidence preponderates against finding that the criteria for entitlement to SMC based on housebound status were met since May 1, 2018. The claim is denied. Increased Ratings A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 2. Discontinuation of the 100 percent rating for prostate cancer, effective May 1, 2018 The Veteran contends that the discontinuation of the 100 percent rating for his prostate cancer, effective May 1, 2018, was improper. In February 2017, VA proposed to reduce the 100 percent evaluation for prostate cancer to a 20 percent rating. This reduction was accomplished in a February 2018 rating decision, effective May 1, 2018. The Board notes that 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 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 February 2018 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. The Veteran's prostate cancer was reevaluated in November 2016. 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 remission, with the most recent treatment for the disorder being in February 2016. The examiner noted that treatment was completed and they were currently in the watchful waiting status. 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 November 2016. 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 asserted that this examination was inadequate as to the status of his cancer treatment or remission. 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 February 2017 letter notifying the Veteran of the proposed rating reduction, 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 was 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. 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). 3. Entitlement to an evaluation of 40 percent for prostate cancer from May 1, 2018 to July 18, 2021 Having determined that VA correctly followed the process required to discontinue the Veteran's 100 percent rating, the Board must determine whether a rating in excess of 20 percent is warranted from May 1, 2018 to July 18, 2021. As noted above, under Diagnostic Code 7528, if there has been no local reoccurrence or metastasis, then the Veteran's cancer residuals are to be rated as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. The Veteran does not demonstrate any renal dysfunction due to his prostate cancer, but rather asserts a predominance of urinary/voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. Regarding urine leakage, a 20 percent evaluation requires the wearing of absorbent materials which must be changed less than two times per day. A 40 percent evaluation requires the wearing of absorbent materials which must be changed two to four times per day. 38 C.F.R. § 4.115a. Regarding urinary frequency, the Board notes that a 20 percent evaluation is warranted with daytime voiding intervals between one and two hours, or awakening to void three to four times per night. A 40 percent evaluation is warranted with daytime voiding intervals of less than an hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. For obstructed voiding, a 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. After a complete review of the evidence the Board finds that a rating of 40 percent is warranted from May 1, 2018 to July 18, 2021. Significantly, the November 2016 VA examiner found that the Veteran's prostate cancer residuals did not require the wearing of absorbent material, or use of an appliance, but did cause a daytime voiding interval between one and two hours and a nighttime awakening to void two times. In his May 2018 Notice of Disagreement (NOD), the Veteran challenged the findings of the November 2016 examiner with regards to his voiding symptoms. He provided, "I never said or reported my daytime voiding was one and two hours. What I said was it was one or two times every hour or two hours. My nighttime voiding is about the same. From 20:00 hours to 24:00 four to five times, 24:00 to 04:00 three to four times." In his February 11, 2019 Form 9, the Veteran again noted that his daytime voiding was misreported as noted in his May 2018 NOD. The Veteran is competent and credible to report urinary frequency. As noted above, a 40 percent evaluation is warranted for urinary frequency when the Veteran experiences daytime voiding interval less than one hour, or; awakening to void five or more times per night. Thus, his report of nighttime voiding four to five times is sufficient evidence to warrant a rating of 40 percent from May 1, 2018 as he awakened to void five or more times per night. As the November 2016 examiner misreported the Veteran's voiding dysfunction symptoms, the Board finds that the preponderance of the evidence is in favor of finding that a rating of 40 percent is warranted for prostate cancer from May 1, 2018 to July 18, 2021. The claim is granted. 4. Entitlement to an evaluation in excess of 40 percent for prostate cancer from May 1, 2018 Incorporating the above grant, the Veteran's prostate cancer is now rated as 40 percent disabling under DC 7528 from May 1, 2018. The Veteran seeks a higher rating. As noted above, under Diagnostic Code 7528, if there has been no local reoccurrence or metastasis, then the Veteran's prostate cancer residuals are to be rated as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. The Veteran does not demonstrate any renal dysfunction due to his prostate cancer, but rather asserts a predominance of urinary/voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. As a 40 percent rating is the highest rating that can be received for urinary frequency, the Board will not discuss urinary frequency in its analysis. Additionally, as a 30 percent rating is the highest rating that can be awarded for obstructed voiding, the Board will not discuss obstructed voiding in its analysis. 38 C.F.R. § 4.115a. Thus, the Board will focus on whether the Veteran is entitled to a rating in excess of 40 percent disabling based on urine leakage. Regarding urine leakage, a 40 percent evaluation requires the wearing of absorbent materials which must be changed two to four times per day. A 60 percent evaluation requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. After a complete review of the evidence the Board finds that a rating in excess of 40 percent is not warranted from July 19, 2021. Significantly, the July 2021 VA examiner found that the Veteran's prostate cancer residuals did not require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. The Veteran has not submitted any lay evidence to the contrary. Medical treatment records preponderate against finding any recurrence of active prostate cancer from July 19, 2021. Those medical records further preponderate against finding a voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Based on the foregoing evidence, the preponderance of the evidence is against finding that a rating in excess of 40 percent was warranted for prostate cancer prior from July 19, 2021. The claim is denied. 5. Special monthly compensation (SMC) for loss of use of a creative organ is denied. In an October 2021 Appellate Brief, the Veteran's representative wrote, "[The Veteran] disagrees with the denial of his claim for SMC for use of loss of creative organ. The Veteran's prostate cancer and associated residuals cause him loss of use of his creative organ." Contrary to the Brief's assertion, this issue has not been denied in a rating decision. However, when raised by the claimant or the record, the Board may take jurisdiction of SMC as an inferred issue as part of an underlying increased rating claim. Here, the representative raised the issue explicitly as part of the underlying increased rating claim for prostate cancer so the Board will address it. SMC for loss of use of a creative organ is available when the evidence shows acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ; or when a biopsy, recommended by a board including a genitourologist and accepted by the veteran, establishes the absence of spermatozoa; or when atrophy resulting from mumps followed by orchitis in service is service connected. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Neither lay nor medical evidence establishes any of these conditions. Service connection for prostate cancer does not automatically result in an award of SMC for loss of use of a creative organ unless the prostate cancer was treated by radical prostatectomy. An August 2015 VA treatment record states that the Veteran "elected radical prostatectomy and [the urologist] put in an NVCC consult for that." However, subsequent treatment records show he underwent radiation therapy treatment and a radical prostatectomy was not performed. See VA treatment records; VA examination reports. In both the November 2016 and the July 2021 VA examinations for prostate cancer, the examiner found that the Veteran did not have erectile dysfunction. Furthermore, medical treatment records show no finding of erectile dysfunction. The Veteran himself has not reported erectile dysfunction. As the evidence does not demonstrate that the Veteran has erectile dysfunction or any other loss of use or actual loss of a creative organ, the Board finds that entitlement to special monthly compensation based on loss of use of a creative organ is not warranted. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). 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.