Citation Nr: A21020610 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210326-149009 DATE: December 29, 2021 ORDER The reduction of the disability rating for prostate cancer from 100 percent to 40 percent effective May 1, 2021, was proper. The claim of entitlement to a rating in excess of 40 percent for prostate cancer residuals since May 1, 2021, is denied. FINDINGS OF FACT 1. A November 2020 rating decision proposed a reduction of the disability rating assigned for residuals of prostate cancer from 100 percent to 40 percent. 2. A February 2021 rating decision effectuated the proposed reduction of the disability rating for residuals of prostate cancer from 100 percent to 40 percent, effective May 1, 2021. 3. The 100 percent disability rating for prostate cancer had been in effect for less than five years. 4. An adequate reexamination in November 2020 indicated an improvement in the severity of the Veteran's service-connected prostate cancer, specifically that the Veteran's prostate cancer caused the predominant manifestation of wearing absorbent materials that needed to be changed two to four times per day. 5. Beginning May 1, 2021, the record shows that the Veteran's prostate cancer is productive of no worse than required changing of absorbent material no more than four times per day and nighttime awakenings no more than twice per night. CONCLUSIONS OF LAW 1. The RO complied with the procedural requirements under 38 C.F.R. § 3.105(e) for effectuating rating reductions. 38 C.F.R. § 3.105. 2. The reduction of the disability rating for prostate cancer from 100 percent to 40 percent effective May 1, 2021, 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. 3. The criteria for entitlement to rating in excess of 40 percent for prostate cancer beginning May 1, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, 4.115 Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from April 1968 to April 1970. The Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), took effect on February 19, 2019. The rating decision on appeal was issued in February 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the March 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A hearing was held in August 2021, and a transcript of the proceedings has been associated with the claims file. Due to the selection of the Hearing docket, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim pertaining to the reduction of the Veteran's service-connected prostate cancer, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. The reduction of the disability rating for prostate cancer from 100 percent to 40 percent effective May 1, 2021, was proper The Veteran asserts that the rating reduction for his prostate cancer from 100 percent to 40 percent effective May 1, 2021, was improper. The claim at issue is not a formal reduction under the substantive provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344 because the provisions of the 38 C.F.R. § 4.115b, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for residuals of prostate cancer. Therefore, the Regional Office's action was not a "rating reduction" as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). In short, the Board must only determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under Diagnostic Code 7528. When the propriety of a rating decision is at issue, the focus is on the actions of the Regional Office in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the rating supported the reduction. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 5 Vet. App. 413 (1993) (the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Further, rating reduction cases must be based upon a review of the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 5 Vet. App. at 420-421. Here, because the Veteran's 100 percent rating for service-connected prostate cancer was assigned October 25, 2019, to May 1, 2021, a period of less than five years, the provisions of 38 C.F.R. § 3.344(c) apply. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in contrast to a case involving a claim for an increased rating, in which it is the Veteran's responsibility to show that the disability has worsened. A rating reduction focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the Regional Office at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). There are specific procedural requirements applicable to rating reductions. If a reduction in the rating is considered warranted and the lower rating would result in a reduction or discontinuance of the compensation payments currently being made, the Regional Office must issue a rating decision proposing the reduction and set forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is then allowed for response; the Regional Office must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). 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). The Board finds that the rating reduction from 100 percent to 40 percent effective May 1, 2021, for residuals of prostate cancer was proper. See generally 38 C.F.R. § 3.344. The Veteran essentially challenges the propriety of the rating reduction for the service-connected residuals of prostate cancer which the Regional Office implemented in the currently appealed rating decision issued in February 2021. He specifically contends that his residuals of prostate cancer were more severe than those contemplated by a 40 percent rating, rendering the rating reduction improper. The record evidence does not support his assertions. It shows instead that re-examination of the Veteran's service-connected residuals of prostate cancer disability demonstrated sustained improvement, supporting the rating reduction. First, the Regional Office issued a proposed rating in November 2020, and the Veteran received notice of this action in December 2020. The Veteran was given 60 days for the presentation of additional evidence to show that the reduction of compensation should not be made. The notification letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). In a Statement in Support of Claim received in December 2020, the Veteran provided a statement regarding his symptoms. Based upon these facts, the Board finds the Regional Office complied with the procedural safeguards regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. Next, the question of whether a disability has improved involves consideration of the applicable rating criteria. Diagnostic Code 7528 provides a 100 percent disability rating for malignant neoplasms of the genitourinary system (such as the Veteran's prostate cancer). Subject to the same, the criteria provides that, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination being performed every six months. Any changes in the assigned disability rating based upon such examinations are to be made subject to the provisions of 38 C.F.R. § 3.105(e). Diagnostic Code 7528 instructs that if there has been no local reoccurrence or metastasis, the disability is to be rated based upon residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. Regarding urine leakage, a 20 percent evaluation is warranted when the wearing of absorbent materials which must be changed less than two times per day is required. A 40 percent evaluation is warranted when the wearing of absorbent materials which must be changed two to four times per day is required. A maximum 60 percent evaluation is warranted when the use of an appliance is required, or the wearing of absorbent materials which must be changed more than four times per day is required. See 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent evaluation is warranted for daytime voiding intervals between two and three hours or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding intervals between one and two hours or awakening to void three to four times per night warrants. A 40 percent rating is warranted for daytime voiding intervals of less than one hour, or awakening to void five or more times per night. Id. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two 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's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A maximum 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id. In this case, a 40 percent rating was assigned for the use of absorbent materials which must be changed two to four times per day. Additional symptoms, as documented in the November 2020 VA examination report, included nighttime awakening three to four times per night, daytime voiding intervals between one and two hours, hesitancy, inactive disease, slow stream, and weak stream. While the Veteran's December 2020 statement endorses more severe symptoms, he specifically reports use of pads three to five times per day, but not that these pads needed to be changed up to five times per day. Further, his reports from VA treatment records contradict this assertion as he reported only using two to three pads per day. There is also no evidence of reoccurrence or metastasis. Moreover, the evidence does not show use of an appliance. There is an indication that there is obstructed voiding, but not such that intermittent or continuous catheterization is required. There was also no indication of urinary tract infections. Further, the Board finds that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. In this regard, the record shows that the Veteran's prostate cancer is in remission. 38 C.F.R. §§ 4.2, 4.10. Contemporaneous VA treatment records reflect improvement in his overall condition. By way of example, in September 2020, the Veteran reported improvement in his urine control with only two to three medium pads needed per day. Given the November 2020 VA examination and contemporaneous VA treatment records, the Board concludes that an adequate examination was performed in November 2020 that showed improvement consistent with a reduction from 100 percent to 40 percent under the provisions of 38 C.F.R. § 3.344(c) and the criteria for urinary frequency. Under the circumstances, the Board concludes that the Regional Office's rating action to effectively reduce the Veteran's disability rating for prostate cancer from 100 percent to 40 percent, effective May 1, 2021, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.343(a), 3.344(a), (c). 2. The claim of entitlement to a rating in excess of 40 percent for prostate cancer residuals since May 1, 2021 The Veteran contends that he is entitled to a rating in excess of 40 percent since May 1, 2021. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, VA examination findings from November 2020 reflect that the Veteran's ongoing residuals of prostate cancer most closely approximate the criteria for a 40 percent rating. Given the evidentiary windows established with the selection of the Hearing docket under AMA, the only other evidence that may be considered is the Veteran's testimony before the undersigned in August 2021. VA-generated records within 90-days of the hearing are not eligible for review, and the Veteran did not submit additional information within this window. In the hearing before the undersigned, the Veteran reported nighttime awakenings approximately two to four times per night, but it was "not much of a problem". He changed his pads approximately three times per day, and he indicated that four was the maximum number of times per day that he would need to change his pads. The Veteran reported some symptoms of obstruction and hesitancy that were consistent with the November 2020 VA examination report. He reported perceived improvement in his symptoms since the surgical procedure. While his symptoms made it difficult to bend or stoop, they did not impact how long he could ride in a car or plane. In sum, since May 1, 2021, the Veteran's residuals of prostate cancer manifested with changing absorbent materials two to four times per day, nighttime awakenings two to four times per night, and some occasional symptoms of obstruction and hesitancy. There was no evidence of recurrence or metastasis, renal dysfunction, or infections. Accordingly, a rating in excess of 40 percent for the most predominant residual, voiding dysfunction, is not warranted. The Board considered other diagnostic codes that could be related to the Veteran's disability such as Diagnostic Code 7522 for erectile dysfunction. However, the Veteran is already service connected for erectile dysfunction, and he is in receipt of Special Monthly Compensation (SMC) for loss of use of a creative organ. The Board acknowledges the Veteran's general statements that his prostate cancer is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence through the period since May 1, 2021, satisfies the criteria for higher ratings. The Board has considered whether a staged rating under Hart, supra, is warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In this case, the preponderance of the evidence is against a rating in excess of 40 percent for prostate cancer beginning May 1, 2021, and the claim must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.