Citation Nr: 21076292 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 19-23 642 DATE: December 23, 2021 ORDER The discontinuance of the 100 percent evaluation for service-connected prostate cancer residuals effective August 1, 2018, and the assignment of a 20 percent rating was proper. FINDINGS OF FACT 1. An April 2014 rating action found error in a December 2013 rating that assigned an initial non-compensable rating for prostate cancer when a 100 percent rating was warranted for prostate cancer as an active process. 2. The 100 percent rating was continued in a March 2015 rating action, and in a May 2016 rating action, while the Veteran was undergoing treatment for prostate cancer. 3. The Veteran completed radiation treatment in December 2015 and hormonal therapy for his prostate cancer in 2016. 4. In an August 2017 examination conducted for VA purposes, more than 6 months after the cessation of prostate cancer treatment, the Veteran's prostate cancer was not shown to have recurred or metastasized, but was productive of a voiding dysfunction with a daytime voiding interval between 2 and 3 hours and nighttime wakening to void 3 to 4 times. 5. In August 2017, the Agency of Original Jurisdiction (AOJ) sent a proposal for the rating reduction for the Veteran's service-connected prostate cancer, allowed more than 60 days for the Veteran to submit additional evidence, and in a May 2018 rating action reduced the evaluation to 20 percent, effective from August 1, 2018. CONCLUSION OF LAW The reduction in the evaluation from 100 percent disabling to 20 percent disabling for service-connected prostate cancer, effective August 1, 2018, is found to be proper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115(a), 4.115(b), DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1969 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board notes that the Veteran's attorney has asserted clear and unmistakable error (CUE) in the rating reduction. In terms of CUE, the Veteran remains free to file a claim of CUE on a form prescribed by the Secretary. However, CUE is not the subject of this appeal because it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Further, the Veteran testified at the June 2021 Board hearing that his voiding dysfunction has worsened following prostate surgery in February 2021. While the matter of an increased rating is not presently before the Board, the Veteran is free to file an increased rating claim. The reduction of the disability rating for prostate cancer from 100 percent disabling to 20 percent disabling was proper. The Veteran contends that his rating was improperly reduced from 100 percent to 20 percent. Diagnostic Code 7528 provides for a 100 percent rating following therapy for malignant neoplasms of the genitourinary system with a mandatory VA examination at the expiration of six months. Afterward, if there has been no local reoccurrence or metastasis, residuals are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b , DC 7528, Note. The Note also provides that any change in evaluation based upon the examinations conducted in this regard, shall be subject to the provisions of 38 C.F.R. §3.105(e). Voiding dysfunction includes three subcategories: 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 2 times per day. A 40 percent evaluation requires the wearing of absorbent materials which must be changed 2 to 4 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 4 times per day. 38 C.F.R. § 4.115a. Regarding urinary frequency, a 10 percent evaluation is warranted with daytime voiding intervals between 2 and 3 hours; or awakening to void 2 times per night. A 20 percent evaluation is warranted with daytime voiding intervals between 1 and 2 hours; or awakening to void 3 to 4 times per night. A 40 percent evaluation is warranted with daytime voiding intervals of less than an hour; or awakening to void 5 or more times per night. 38 C.F.R. § 4.115a. Finally, for obstructed voiding, a noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/second); (3) recurrent urinary tract infections secondary to obstruction; and/or (4) stricture disease requiring periodic dilatation every two to three months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. The provisions of 38 C.F.R. §3.105(e) directs that when a rating reduction is considered and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran's latest address of record. This proposed rating should set forth all of the material facts and reasons for the proposed reduction. The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. The Veteran must be also informed of the right to a predetermination hearing, if requested within 30 days. 38 C.F.R. § 3.105(i)(1). If additional evidence is not received and a predetermination hearing is not requested within the applicable time periods, written notice of the final action, including the reasons for the decision and the supporting evidence, must be issued to the Veteran. The effect of date of final action shall be the last day of the month in which a 60 day period from the date of notice of the final action expires. Based on a review of the record, the Board finds that the reduction from the 100 percent disability rating for prostate cancer residuals to 20 percent was proper. A December 2013 rating action granted service connection for prostate cancer, and assigned an initial non-compensable rating effective from January 2013. An April 2014 rating action, however, found error in the initial non-compensable rating, and assigned a 100 percent rating effective from January 2013 for the prostate cancer as an active process under Diagnostic Code 7528. The Veteran was afforded a VA examination in March 2015. At that time, the examiner noted that the Veteran's prostate cancer was under surveillance. The RO continued the 100 percent rating based on active malignancy. At an April 2016 VA examination, the Veteran was noted to have completed radiation therapy in December 2015, but was still undergoing androgen deprivation therapy. As such, the 100 percent rating was continued in a May 2016 rating action. The Veteran was afforded another VA examination in August 2017. The examiner noted that the Veteran had completed androgen deprivation therapy in 2016. At the time of the August 2017 examination, the Veteran's cancer was characterized as in remission, and he was not undergoing radiation or other treatment. The examiner also noted the residuals produced a voiding dysfunction with a daytime voiding interval between 2 and 3 hours, and nighttime wakening to void 3 to 4 times. Based on the August 2017 examination, the RO notified the Veteran in August 2017 of its intent to reduce his evaluation for prostate cancer to 20 percent. In an August 2017 letter, the Veteran was informed of the proposed reduction, the type of evidence that should be submitted to prevent the reduction, the 60 day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days. The Veteran was allowed the 60 day period to submit evidence, and no request for a predetermination hearing was submitted. After allowing the Veteran the appropriate time periods to submit evidence or request a hearing, VA properly provided written notice of the final action in the form of a May 2018 rating decision, which reduced the Veteran's rating from 100 percent to 20 percent, effective August 1, 2018. In that rating decision, the RO notified the Veteran of the final decision, as well as the rationale and evidence supporting it. As VA provided proper notice of the proposed rating and the right to a predetermination hearing, allowed the requisite period of time for the submission of additional evidence, and notified the Veteran of the final decision, which was effective 60 days later, VA has satisfied the notice requirements for this rating reduction. In May 2018, the Veteran was assigned a 20 percent rating, effective August 2018, based on daytime voiding interval between two and three hours and nighttime awakening to void three to four times per night. The Veteran did not have obstructed voiding, leakage, urinary tract or kidney infections, or renal dysfunction. While the August 2017 VA examiner noted that the Veteran needed follow up, the examiner appropriately indicated the status of the Veteran's prostate cancer residuals, which does not negate the earlier indication that the Veteran's treatment had ended. Thus, the discontinuance of the 100 percent rating and assigning a 20 percent rating for the prostate cancer residuals that were demonstrated was proper. At the time of the rating reduction, prostate cancer was in remission. The rating criteria for malignant neoplasms of the genitourinary system specifically direct VA to rate prostate cancer residuals on the predominance of either renal dysfunction or voiding dysfunction. The evidence does not demonstrate any renal dysfunction, and the voiding dysfunction was demonstrated by frequency; therefore, the prostate cancer residuals were appropriately rated under the pertinent rating criteria for voiding dysfunction. Accordingly, the Board finds that the weight of the evidence shows the reduction in disability rating from 100 to 20 percent for prostate cancer residuals was proper. (Continued on the next page) In reaching this decision, 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, the Board does not find that these provisions are applicable in the present case. This is because the provisions of 38 C.F.R. § 4.115b , Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the AOJ's action was not a "rating reduction," as that term is commonly understood. See 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] involved contained a temporal element for that 100 percent rating). In the present case, Diagnostic Code7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, with respect to rating reductions and terminations of 100 percent ratings, are not applicable in this case. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.