Citation Nr: 21007636 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-20 534 DATE: February 10, 2021 ORDER The reduction in the rating assigned for prostate cancer, from 100 percent to 10 percent, effective January 1, 2017, is proper. A restoration of the Veteran’s 100 percent rating assigned for prostate cancer is denied. Entitlement to a disability rating in excess of 10 percent for residuals of prostate cancer from January 1, 2017 to October 17, 2019 is denied. Entitlement to service connection to chronic prostatitis secondary to service-connected prostate cancer is granted. Entitlement to service connection for a disability manifested by muscle atrophy, physical weakness, and nerve tremors secondary to service-connected prostate cancer is denied. FINDINGS OF FACT 1. The discontinuance of the 100 percent rating for prostate cancer is not a formal rating reduction in this case, as the “reduction” was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528. 2. The procedural requirements of 38 C.F.R. § 3.105 (e) were properly and appropriately completed in this case. 3. From January 1, 2017 to October 17, 2019, the evidence of record does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer, such that continued application of a 100 percent rating for residuals of prostate cancer were appropriate under Diagnostic Code 7528. 4. The Veteran’s service-connected residuals of prostate cancer have not been manifested by urinary leakage requiring the wearing of absorbent materials, daytime voiding intervals of less than two hours or awakening to void at least three times a night, or urinary retention requiring intermittent or continuous catheterization. 5. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed chronic prostatitis is due to his service-connected prostate cancer. 6. The competent and credible evidence does not demonstrate that the Veteran has a current disability manifested by muscle atrophy, physical weakness, and nerve tremors. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent disability rating for prostate cancer, effective January 1, 2017, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 4.1, 4.7, 4.115b, Diagnostic Code 7528. 2. The criteria for entitlement to a rating in excess of 10 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for service connection for chronic prostatitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for disability manifested by muscle atrophy, physical weakness, and nerve tremors are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which decreased the Veteran’s rating for prostate cancer from 100 percent to 0 percent, effective January 1, 2017. The Board remanded this case in December 2019 for further development. During the pendency of the appeal, the RO granted a higher 10 percent disability rating for residuals of prostate cancer from January 1, 2017. In an August 2020 rating decision, the RO granted a 100 percent disability rating, the maximum schedular rating, for prostate cancer from October 18, 2019, based on evidence of active malignancy. This does not constitute a full grant of the claim and it remains in appellate status as the Veteran’s prostate cancer is still rated as 10 percent disabling from January 1, 2017 to October 17, 2019. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a videoconference hearing before the undersigned in November 2019. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 1. Discontinuance of the 100 percent rating for prostate cancer From February 11, 2014 to December 31, 2016, an initial 100 percent rating was assigned due to the Veteran’s prostate cancer diagnosis with active malignancy. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Veteran disagreed with the October 2016 (final reduction) VA rating decision that reduced his initial disability rating for prostate cancer from 100 to 0 percent, effective January 1, 2017. In a March 2018 rating decision, the Veteran’s residuals of prostate cancer were rated as 10 percent disabling based on residuals (obstructed voiding), effective January 1, 2017 and in an August 2020 rating decision, his prostate cancer was rated as 100 percent disabling based on active malignancy, effective October 18, 2019. A note after Diagnostic Code 7528 provides that, 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. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective 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). Initially, 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 RO’s action was not a “rating reduction,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992), (where the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code involved contained a temporal element for that 100 percent rating). In the present case, Diagnostic Code 7528 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, referable to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In other words, this is in essence an increased rating case, but it is not a formal reduction case because of the temporal element of Diagnostic Code 7528. In short, the rating reduction in this case was procedural in nature and by operation of law. The Board only has to 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. As discussed further below, the Board finds that the procedural requirements were properly followed in this case and the “reduction” was by operation of law under Diagnostic Code 7528 in this case. In this case, the Veteran underwent a VA examination for his prostate cancer in April 2016. In a May 2016 rating decision, the Veteran’s 100 percent rating for prostate cancer was proposed to be reduced to 0 percent on the basis of that examination. The Veteran was informed of his rights, including to a predetermination hearing and to submit additional evidence, in a June 2016 letter. No response was submitted by the Veteran or his representative regarding this proposed reduction. The RO finalized the discontinuance of the Veteran’s 100 percent rating for residuals of prostate cancer in the October 2016 rating decision and assigned a 0 percent rating, effective January 1, 2017. The Veteran was notified of this reduction by letter dated in October 2016. In light of these facts, the Board finds that the particularized procedure for discontinuing the Veteran’s 100 percent rating for his prostate cancer was appropriately and adequately completed in this case. See 38 C.F.R. § 3.105 (e). In considering the evidence of record under the laws and regulations as set forth above, the Board also concludes there that is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under Diagnostic Code 7528 from January 1, 2017 to October 17, 2019. See 38 C.F.R. § 4.7. The evidence of record, including pertinent VA and private treatment records, does not reveal local recurrence or metastasis of the Veteran’s prostate cancer from January 1, 2017 to October 17, 2019. Specifically, the April 2015 and April 2016 VA examinations document the Veteran’s diagnosis of prostate cancer in November 2012 with treatment completed in June 2015 and show that the disease was in remission. Subsequent private treatment records from November 2015 to June 2019 show findings of no recurrence of prostate cancer even while noting increasing PSA levels. Further, the April 2020 VA examiner, who reviewed the claims file to include medical evidence of rising PSA levels, specifically identified the October 18, 2019 PSA level of 5.8 as the significant diagnostic test finding. The Board has also considered the Veteran’s lay statements. Although the Board recognizes that the Veteran is competent to describe his observable symptoms of prostate cancer, he is not competent to opine as to when his prostate cancer recurred or the significance of his PSA levels. He has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the lay statements that the Veteran’s prostate cancer recurred based on rising PSA levels do not constitute competent medical evidence and lack probative value. Therefore, given the lack of recurrence or metastasis (spreading) of the prostate cancer from January 1, 2017 to October 17, 2019, the initial 100 percent rating for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. 2. Entitlement to a disability rating in excess of 10 percent for residuals of prostate cancer from January 1, 2017 to October 17, 2019 is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 - 10 (2007). As stated before, the Veteran’s prostate cancer has been rated as 100 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7528, the maximum schedular rating, from the February 11, 2014 grant of service connection to December 31, 2016 and from October 18, 2019 to present. His residuals of prostate cancer are rated as 10 percent disabling from January 1, 2017 to October 17, 2019. As such, the Board will consider whether the Veteran’s residuals of prostate cancer warrant a disability rating in excess of 10 percent from January 1, 2017 to October 17, 2019. As noted above, Diagnostic Code 7528 (malignant neoplasms of the genitourinary system) provides, in part, that if there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as renal dysfunction or voiding dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b. Renal dysfunction provides higher ratings of 30, 60, 80, and 100 percent. See 38 C.F.R. § 4.115a. Nevertheless, the Board finds the evidentiary record does not show the Veteran’s service-connected residuals of prostate cancer are predominantly manifested by renal dysfunction. In fact, the April 2015, April 2016, and April 2020 VA examinations noted that the Veteran did not have renal dysfunction, consistent with contemporaneous private treatment records. As a result, further consideration for a disability rating in excess of 10 percent for residuals of prostate cancer for renal dysfunction is not warranted in this case. Under 38 C.F.R. § 4.115a, voiding dysfunction is rated with regard to urine leakage, frequency, or obstructive voiding. For urine leakage, a 20 percent rating is warranted for disability requiring the wearing of absorbent materials which must be changed less than two times per day; a 40 percent rating is warranted for disability requiring the wearing of absorbent materials which must be changed two to four times a day; a 60 percent rating is warranted for disability 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. § 4.115 (a). For urinary frequency, a 10 percent rating is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five of more times per night. Id. For obstructed voiding, a noncompensable rating is warranted for obstructive symptomatology with or without stricture requiring dilatation one to two times per year. A 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with one or more additional symptoms (post-void residuals greater than 150 cubic centimeters (cc), markedly diminished peak flow rates less than 10 cc per second by uroflowmetry, recurrent urinary tract infection secondary to obstruction, or stricture disease requiring dilatation every two to three months). A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. Id. In the April 2018 VA 9, the Veteran reported residuals of voiding, kidney problems, and negative side effects from one of his medications, to include muscle atrophy, physical weakness, and nerve tremors. At the November 2019 hearing, the Veteran reported that his condition had worsened. He stated that sometimes he needed to use the bathroom at night, but no more than once or twice a night. During the day, his need to urinate varied. The Veteran reported going every two hours or so during the day. While he was receiving treatment for his prostate cancer, he had leakage and occasional mishaps, but after his treatment was completed, this only occurred “once in a great while.” He denied wearing absorbent material. According to VA and private treatment records from June 2017 to June 2019, the Veteran had a history of blood in his urine, but otherwise normal urination with occasional one-time nocturia. Based on a careful review of all the subjective and clinical evidence, the Board finds that from January 1, 2017 to October 17, 2019, the Veteran’s residuals of prostate cancer did not warrant a disability rating in excess of 10 percent. In other words, the Veteran’s residuals of prostate cancer did not manifest in urinary leakage requiring the wearing of absorbent materials, daytime voiding intervals of less than two hours or awakening to void at least three times a night, or urinary retention requiring intermittent or continuous catheterization. The Board is sympathetic to the Veteran’s reported symptomatology; however, there is no basis upon which to award a disability rating in excess of 10 percent for his residuals of prostate cancer. The Board finds that the preponderance of the evidence is against finding that a higher rating is warranted for the Veteran’s residuals of prostate cancer. Therefore, the benefit-of-the-doubt rule does not apply and a disability rating in excess of 10 percent from January 1, 2017 to October 17, 2019 for residuals of prostate cancer under Diagnostic Code 7528 must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The first requirement for any service connection claim is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). In Bailey v. Wilkie, the Court found that when entitlement to secondary service connection for non-voiding and non-renal residuals was raised in an increased rating claim for prostate cancer, the Veteran did not need to file a separate, formal claim for service connection for those residuals. No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13 (Jan. 6, 2021). In this case, the record and the Veteran has indicated that he had non-voiding and non-renal residuals, specifically chronic prostatitis and disability manifested by muscle atrophy, physical weakness, and nerve tremors. As such, the Board will adjudicate entitlement to service connection for chronic prostatitis and disability manifested by muscle atrophy, physical weakness, and nerve tremors. 1. Entitlement to service connection to chronic prostatitis secondary to service-connected prostate cancer is granted. Based on a careful review of all the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in the favor of the Veteran, secondary service connection for chronic prostatitis is warranted. Service treatment records do not document that the Veteran had complaints of, treatment for, or a diagnosis of prostatitis. The evidence, to include private treatment records and the April 2016 and April 2020 VA examinations, shows that the Veteran is currently diagnosed with chronic prostatitis. The question remains whether the Veteran’s current chronic prostatitis is etiologically related to his military service or service-connected disabilities. In the April 2016 and April 2020 VA examinations, the examiners found that the Veteran’s chronic prostatitis was a residual condition related to his prostate cancer. The evidence does not show a contrary medical opinion. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for chronic prostatitis is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a disability manifested by muscle atrophy, physical weakness, and nerve tremors secondary to service-connected prostate cancer is denied. In the April 2018 VA 9, the Veteran reported negative effects from his prescription medications, to include muscle atrophy, weakness, and nerve tremors. Post-service VA and private treatment records show that the Veteran did not have muscle atrophy, physical weakness, or nerve tremors with the exception of a single November 2015 private treatment record indicating that the Veteran had an allergic reaction to cipro, including nausea, difficulties sleeping, and feeling weak. In Saunders v. Wilkie, 886 Fed. Cir. 1356 (2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. § 1110. However, the Federal Circuit did not hold that the Veteran could demonstrate service connection simply by asserting subjective pain. Rather, to establish a disability, the Veteran’s pain must amount to a functional impairment. The Federal Circuit held that to establish the presence of a disability, the Veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. at 28. The Board finds that in this case, the decision in Saunders can be distinguished from the facts of this case. Here, while the Veteran has asserted muscle atrophy, weakness, and nerve tremors, there is no evidence that his subjective symptoms resulted in any functional impairment. As such, Saunders is not applicable in this case. In sum, the Veteran has not presented, identified, or alluded to the existence of any post-service medical evidence of a disability manifested by muscle atrophy, physical weakness, and nerve tremors. Here, no underlying disability has been clinically diagnosed during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran is certainly competent to report his symptoms of muscle atrophy, weakness, and nerve tremors. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not presented any competent and credible evidence of a current diagnosis for a disability manifested by muscle atrophy, physical weakness, and nerve tremors, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest that he has an underlying chronic disability. Thus, the claim for service connection for a disability manifested by muscle atrophy, physical weakness, and nerve tremors is denied. The Board finds that the preponderance of the evidence is against finding that service connection for a disability manifested by muscle atrophy, physical weakness, and nerve tremors is warranted. Therefore, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.