Citation Nr: 21074859 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-05 601 DATE: December 16, 2021 ORDER The reduction of rating for prostate cancer from 100 percent to 20 percent, effective May 1, 2018, was proper and the appeal is denied. FINDING OF FACT Residuals of prostate cancer were shown to have improved at the time of the rating reduction. CONCLUSION OF LAW The reduction in the rating for residuals of prostate cancer from 100 percent to 20 percent, effective May 1, 2018, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.105(e), 3.321(b)(1), 3.343(a), 3.344, 4.1-4.7, 4.73, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to May 1970, including service in the Republic of Vietnam. This matter is on appeal from a March 2017 rating decision. The Veteran appeared at an August 2021 hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. 1. The reduction of rating for prostate cancer from 100 percent to 20 percent, effective May 1, 2018, was proper and the appeal is Service connection for prostate cancer was established in a December 2014 rating decision that assigned a 100 percent rating, effective September 5, 2014. A March 2017 rating decision proposed to reduce the 100 percent rating for prostate cancer to 0 percent. Notice was sent to the Veteran in March 2017, proposing to reduce the 100 percent rating for prostate cancer to 0 percent. The Veteran submitted a personal statement. A February 2018 rating decision reduced the rating for prostate cancer residuals to 0 percent, effective March 1, 2018. The Veteran appealed that decision to the Board. A July 2018 rating decision restored a 20 percent rating, effective May 1, 2018. A disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). Disability ratings are determined by applying the criteria set forth in the 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. Prostate cancer is rated pursuant to Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. A 100 percent rating is assigned following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, at which point, if there has been no local recurrence or metastases for six months, examination will be scheduled, and rating will be made based on residuals. If a rating has been continued at the same level for long periods, meaning five years or more, VA may not reduce the rating based on examinations less full and complete than those on which payments were authorized or continued. 38 C.F.R. § 3.344(a). When a disability has not become stable and is likely to improve, and the disability rating has not continued at the same level for at least five years, a reexamination disclosing improvement in that disability will warrant a reduction in its rating. 38 C.F.R. § 3.344(c). The duration of the disability rating at issue is measured by the effective date assigned for that rating until the effective date of the actual reduction. Brown v. Brown, 5 Vet. App. 413. If a reduction in rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, the Agency of Original Jurisdiction (AOJ) must issue a rating proposing the reduction and setting forth all material facts and reasons. A period of 60 days is allowed for response. 38 C.F.R. § 3.105(e). 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), (i). A disability which has been continuously rated at or above any rating of disability for 20 or more years for compensation purposes will not be reduced to less than that rating except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the rating to the effective date of reduction of rating. 38 C.F.R. § 3.951. As a preliminary matter, the Board notes that the Veteran does not contend, and the evidence does not show, noncompliance with the procedural requirements for rating reductions. 38 C.F.R. § 3.105(e). Notice was issued with a statement of facts and reasons for the reduction. An opportunity was provided to submit evidence against a proposed reduction. A subsequent rating decision enacted the proposed reduction at the appropriate effective date. The Board finds the notice provisions have been satisfied. Therefore, the Board will focus only on the propriety of the reduction. For ratings that have been continued for five years or more, certain regulatory provisions apply. 38 C.F.R. § 3.344(a)-(b). However, the 100 percent rating for prostate cancer was in effect for less than five years at the time of the reduction. The 100 percent rating was in place from September 5, 2014, to May 1, 2018, a period of less than four years. Therefore, the provisions of 38 C.F.R. § 3.344(a) and 38 C.F.R. § 3.344(b) do not apply. For ratings in effect for less than five years, reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413 (1993); 38 C.F.R. § 4.1, 4.2, 4.10, 4.13. Each disability be viewed in relation to its history. 38 C.F.R. § 4.1. It is the reasonability of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. The rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that the improvement indicates improvement in the ability to function under ordinary conditions of life and work. 38 C.F.R. § 4.13. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a preponderance of evidence weighs against the claim. Brown v. Brown, 5 Vet. App. 413 (1993). A November 2014 VA examiner diagnosed prostate cancer and noted that the Veteran was to undergo radiation therapy with an anticipated date of completion of 2015. The Veteran was also to undergo androgen deprivation therapy with an anticipated date of completion of 2016. The examiner noted that the Veteran did not have any scars related to the treatment of prostate cancer. A January 2017 VA examination, which is the basis of the reduction, found the Veteran had a diagnosis of prostate cancer. Specifically, the Veteran completed brachytherapy in April 2015 and androgen deprivation therapy in August 2016. The examiner stated that the prostate cancer was in remission. The examiner found that the Veteran did not have a voiding dysfunction or a history of recurrent symptomatic urinary tract or kidney infections. There was no renal dysfunction due to prostate cancer. There were no other residual conditions due to prostate cancer or treatment for prostate cancer. The examiner stated that the Veteran did not have any scars related to treatment of prostate cancer. The Veteran's PSA was less than 0.1ng/mL. In an April 2017 letter, the Veteran stated that although treatment had stopped, his life had greatly changed. He stated that the first thing that he did when going out for entertainment was to locate the restrooms. He only wore dark pants to cover up any potential accidental leakage. He did not drink liquids before going on long trips. He did not feel that he could go to outdoor events. He stated that he experienced embarrassment, fatigue, frustration, anxiety, depression, loss of sleep, loss of self-confidence, and frequent bathroom visits. The Veteran stated that he had to visit the bathroom about every one-and-a-half to two hours day or night. He had started to carry a blanket in his car in case of accidents. At a July 2018 informal conference at the AOJ, the Veteran said that he limited his activities for fear of accidents. He described experiencing anxiety, feeling less confident, and fatigued; however, when asked about his feelings, the Veteran did not feel that he had a mental disorder. The Veteran stated that his symptoms were not to a degree that he would see a psychiatrist. The Veteran reported a daytime voiding interval of approximately every 2 hours and nighttime voiding of three to four times per night. The Veteran said that he wore pads at night for leakage and on occasion when he was active during the day. At an August 2021 Board hearing, the Veteran reiterated that his life had greatly changed. He knew where every bathroom was in every grocery store in his town. He wore black pants because he was afraid of leakage. He did not like to go to places with which he was not familiar. His sex life had been affected. He did not drink water before going on lengthy drives. The Veteran stated that he wore pads at times. He may or may not wear them as conditions warranted. He did not wear them on a daily basis, and he did not wear them when he went to sleep. He stated that he woke three or four times a night to void and then returned to bed. He estimated that he urinated from 10 to 15 times per day. The Veteran stated that his prostate cancer was treated by the insertion of radioactive pellets, and he did not know if he had incisions. A daytime voiding interval of one to two hours meets the criteria for a 20 percent rating. 38 C.F.R. § 4.115a. As a result of the findings in the January 2017 VA examination and the Veteran's statements, the AOJ ultimately reduced the Veteran's disability rating from 100 percent to 20 percent for service-connected prostate cancer. The Board finds the notice provisions of 38 C.F.R. § 3.105(e) have been satisfied and the reduction in compensation is warranted, based on the January 2017 examiner's findings as well as the Veteran's statements. The Veteran had completed prostate cancer treatment in August 2016, five months prior to the VA examination, and eight months before the rating reduction was put into effect. The Veteran was experiencing urinary frequency and urgency, but he was managing those symptoms. By the Veteran's own account, his daytime voiding interval has been between one and two hours, and he awakens to void three to four times a night. As by the Veteran's own account he only wears absorbent pads on occasion, the evidence does not show that the Veteran is required to wear absorbent materials which must be changed two to four times per day. Similarly, urinary retention requiring intermittent or continuous catheterization has not been shown. Under applicable regulations, the term disability means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board has carefully considered the Veteran's reported anxiety, loss of confidence, fatigue, frustration, and interruption of sleep. The Veteran undoubtably has had to make adjustments to his life, and the Board in no way wishes to diminish the Veteran's experiences. However, as he told an AOJ hearing officer in July 2018, the Veteran has stated that his reported mental symptoms were not to a degree that he would see a psychiatrist. The evidence does not show that the Veteran's claimed mental symptoms cause impairment to his earning capacity. That conclusion is also supported by the January 2017 VA examiner, who stated in the examination report that the prostate cancer residuals did not impact the ability to work. Concerning other possible symptoms, the January 2017 VA examiner specified that the Veteran did not have a scar as a result of treatment for prostate cancer. Service connection has already been granted for erectile dysfunction. Overall, the Board finds that the preponderance of the evidence shows improvement such that reduction was warranted. The reduction occurred more than six months following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, at which point, there was no local recurrence or metastases. There was no longer any active disease and the evidence showed that a 20 percent rating, but not higher, was appropriate based on the Veteran's urinary frequency. The residuals did not meet the criteria for any higher rating. The two examinations supporting the reduction were as detailed or more than the examiner supporting the assignment of the previous rating. Accordingly, the Board finds that the preponderance of the evidence supported the reduction in rating and that the rating reduction was procedurally proper. Therefore, the claim that the reduction was improper and for restoration of the 100 percent rating must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.