Citation Nr: 21076940 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-24 899 DATE: December 28, 2021 ORDER The reduction in disability rating to a rating of 60 percent, but no higher, for prostate cancer is granted. FINDING OF FACT 1. Service connection for the Veteran's prostate cancer was granted in a December 2014 rating decision, at which time an initial 100 percent rating was assigned, effective November 18, 2014. 2. The Veteran's treatment was completed on June 10, 2015. 3. In an April 2016 rating decision, the RO proposed to reduce the rating for service-connected prostate cancer residuals from 100 percent to 10 percent. The Veteran was informed of the proposal in accordance with 38 C.F.R. § 3.105(e) by letter in April 2016. 4. By rating action dated April 2020, the RO implemented the above reduction for service-connected prostate cancer residuals to 40 percent, effective February 1, 2018. 5. The Veteran's prostate cancer residuals more nearly approximate wearing of absorbent materials which must be changed more than four times per day; there has been no local reoccurrence or metastasis of the prostate cancer and he has not experienced renal dysfunction. CONCLUSION OF LAW The reduction in the disability rating for prostate cancer, but to 60 percent, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), (i), 3.159, 3.344, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from April 1969 to October 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2017 Regional Office (RO) rating decision. Propriety of the Reduction for Residuals of Prostate Cancer Rating Reductions for Prostate Cancer Treatment As an initial matter, where a reduction in an evaluation is warranted, and results in a reduction of overall compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. Moreover, the Veteran must be notified that he has 60 days to present additional evidence showing that compensation should be continued at the present level and that he has a right to a hearing to present evidence if he wishes. 38 C.F.R. § 3.105(e). When a total disability rating is assigned for prostate cancer under 38 C.F.R. § 4.115b, Diagnostic Code 7528, this rating will extend to the cessation of treatment. Following the cessation of surgery, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. The rating criteria also provide that if there has been no local reoccurrence or metastasis, a Veteran's cancer is then rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Here, the Veteran was granted a 100 percent rating for his service-connected prostate cancer. According to a VA examination in June 2015, his radiotherapy treatment continued until June 10, 2015. Based on this examination, in an April 2016 rating decision, the RO proposed to reduce the Veteran's service-connected prostate cancer from 100 percent to 10 percent. In an April 2020 rating decision, the RO reduced the Veterans rating to 40 percent effective February 1, 2018. As an initial matter, the Board finds that the requirements prescribed in 38 C.F.R. § 3.105(e) and (i) have been met. Specifically, the Veteran was sent a letter in April 2016, accompanying the rating decision, informing him of the proposed action, the reasons and bases therefore, and presented him with 60 days to present additional evidence and to testify at a hearing before the RO. Therefore, he was properly notified of his rights and given the appropriate time to submit evidence before his rating was reduced, effective February 1, 2018. As such, VA met the due process requirements under Next, the Board also concludes that the decision to reduce the Veteran's rating was appropriate. Specifically, the evidence reflects that the Veteran underwent radiation therapy and, according to the June 2015 VA examination, this treatment ceased that month, and there was no evidence of recurrence or additional treatment. As such, per DC 7528, the Veteran's 100 percent rating was only merited for 6 months, or through December 2015. Here, the 100 percent rating continued until February 2018, and over two years after this. Therefore the requirements for reduction have been met per DC 7528. Indeed, at his hearing before the Board, the Veteran did not dispute this determination. Whether a Rating in Excess of 40 Percent is Warranted. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran disputes the 40 percent rating he receives under 38 C.F.R. § 4.115b, DC 7528, which contemplates malignant neoplasms of the genitourinary system. Under this diagnostic code, if there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. As an initial matter, the evidence does not indicate any renal dysfunction, nor has the Veteran so asserted that he experienced any such symptoms. Therefore, voiding dysfunction is the predominant disability. In order to warrant a rating in excess of 40 percent the evidence must show continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring 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 review of the evidence, the Bord finds that a 60 percent rating is warranted. Specifically, an October 2020 private treatment record reflects that the Veteran is currently in need of disposable underwear as well as bed under pads. The private physician noted that it is necessary for the Veteran to change 4-6 times a day to reduce secondary infection risk and he should change his bed pads twice a day. The Veteran testified during his October 2020 Board hearing that he goes through 4 to 6 absorbent materials per day, sometimes more voiding more than 10 times per day. Specifically, the Veteran estimated that he voids at least 15 times per day. Therefore, a rating of 60 percent is warranted for symptoms of wearing of absorbent materials which must be changed more than four times per day. A 60 percent rating is also the maximum schedular rating for voiding dysfunction. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.115a. Additionally, the Veteran has not contended, nor does the evidence show, that there was renal dysfunction. Hence, a higher rating than 60 percent is not warranted. 38 C.F.R. § 4.115 (b). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica