Citation Nr: 21008082 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-20 121 DATE: February 11, 2021 ORDER The reduction of the rating for right perinephric leiomyosarcoma status post right nephrectomy from 100 percent to 60 percent, effective May 1, 2016, was proper. FINDING OF FACT The Veteran’s right perinephric leiomyosarcoma status post right nephrectomy is in remission and is not manifested by reoccurrence or metastasis. CONCLUSION OF LAW The change in evaluation for right perinephric leiomyosarcoma status post right nephrectomy from 100 percent to 60 percent, effective May 1, 2016, was proper. 38 U.S.C. § 1155, 5107 (b) (2012); 38 C.F.R. § 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code 7528 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction now rests with Winston-Salem, North Carolina. The Board remanded this matter in January 2019. The Board finds there has been substantial compliance with its January 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) The reduction of the rating for right perinephric leiomyosarcoma status post right nephrectomy from 100 percent to 60 percent, effective May 1, 2016. The Veteran was treated for cancer of the kidney using radiation therapy which ended in January 2015. The Veteran underwent surgery for removal of his kidney due to cancer in March 2015. The Veteran was granted service connection for right perinephric leiomyosarcoma status post right nephrectomy in June 2015, which was rated as 100 percent disabling under Diagnostic Code 7528. The RO reduced the evaluation for the Veteran’s right perinephric leiomyosarcoma status post right nephrectomy to 60 percent based on residuals effective May 1, 2016. Under Diagnostic Code 7528, a 100 percent rating may be assigned for malignant neoplasms of the genitourinary system. Following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, the disorder should be rated based on the residuals, such as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115 (b), Diagnostic Code 7528. Ordinarily, if a Diagnostic Code requires an assignment of a 100 percent evaluation for a finite period of time, followed by the requirement that the disorder be rated based on residuals, the assignment of a lower disability rating based on those residuals does not constitute a reduction. See Rossiello v. Principi, 3 Vet. App. 430 (1992). However, pursuant to Diagnostic Code 7528, any change in evaluation based on examination shall be subject to the provisions of 38 C.F.R. § 3.105(e), which outlines the due process requirement for reduction of rating. Therefore, as a preliminary matter, the Board must ensure compliance with the due process requirements of reduction of rating before reach the merits of the claim. To that end, where a reduction in an evaluation of a service-connected disability is 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 must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which the 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105 (e). The rating reduction in this case complies with the due process requirements of 38 C.F.R. § 3.105 (e). That is, in November 2015, the RO proposed reduction of evaluation for the Veteran’s right perinephric leiomyosarcoma status post right nephrectomy. A November 2015 letter notified the Veteran that he had 60 days to present additional evidence showing that compensation should be continued at the prior level and that he could request a predeterminations hearing. The Veteran submitted letters from two separate private physicians regarding his right perinephric leiomyosarcoma status post right nephrectomy in December 2015. Subsequently, the RO issued a rating decision in February 2016 reducing the rating to 60 percent effective May 1, 2016. In light of this procedural history, the Board finds that the RO complied with the procedures required under 38 C.F.R. § 3.105 (e). Thus, the analysis proceeds to whether the reduction was factually warranted. The Veteran underwent VA examinations in May 2015, October 2015, December 2019, and December 2020. The Board notes that the October 2015 VA examination was found to be inadequate because it was unclear whether the examiner reviewed the entire claims file, and the examiner did not consider the December 2015 letters from the private physicians regarding the Veteran’s treatment. The Board also notes that the 100 percent disability rating was based on the May 2015 VA examination findings. In Dr. J.K.’s December 2015 letter, it was noted that the Veteran had been his patient for several years. He had been started on insulin to control his blood sugar. The Veteran had failed several oral medications and was now taking Levemir and Novolog. It was medically necessary for his blood sugars to remain under tight control as he had only one kidney, which was under functioning. Dr. J.K. said that it was extremely important that the Veteran control his diabetes since so many other complications and diseases could be a result of uncontrolled blood sugar. In Dr. R.O.’s December 2015 letter, the physician said that he operated on the Veteran “several months ago” for a tumor in his right retroperitoneum. The final pathology of this showed that this was a malignant tumor and because of this the Veteran was treated with preoperative radiotherapy before doing a definitive excision. The pathology was a leiomyosarcoma, grade 2 extending to the original margins. When the second operation was done after the radiotherapy, Dr. R.O. was able to clear margins, but he did have to resect the right kidney. Because of this, the Veteran had some postoperative issues, which were ongoing. Dr. R.O. noted several ongoing issues. Specifically, Dr. R.O. said these tumors do recur and so the Veteran needed close follow up. The Veteran also had an abnormal CAT scan that showed lobulated fatty tissue in the right nephrectomy bed. Dr. R.O. could not be assured that this was not malignant, but was “comforted” by the fact that it had been stable; regardless, the Veteran needed to continue to follow up, including a CAT scan in another 6 months. Additionally, because the Veteran’s kidney was removed and he already had poorly controlled diabetes, he had issues with his renal function. The Veteran’s creatinine tended to be in the 1.8 region. This would also require continued follow up, careful attention to his diet, and medications as prescribed by his primary doctor. Dr. R.O. noted that the Veteran had recently been switched to insulin twice a day because of his poor diabetic control. A January 2016 private treatment record showed the Veteran’s creatinine level was at 1.85, and his BUN level was at 24. There was moderate decrease in kidney function noted. In an April 2016 VA treatment record, the Veteran’s creatinine level was 2.23 and BUN level was 27. In an August 2016 VA treatment record, the Veteran’s creatinine level was 1.93. In a May 2019 VA treatment record, the Veteran’s creatinine was 1.75 and BUN level was 22. In an August 2019 private treatment record, it was noted that the Veteran had chronic kidney disease stage III secondary to a pervious nephrectomy and microvascular disease. His renal function was stable. The physician was doubtful that the Veteran would ever end up needing dialysis. In a December 2019 disability benefits questionnaire (DBQ), it was noted that the Veteran continued to be followed by nephrology and surgery. He remained in remission and per recent primary care physician notes, the Veteran’s kidney function had recently improved and he remained in remission. There were no current symptoms. The Veteran did not take continuous medication. He did not require dialysis and there were no signs or symptoms due to renal dysfunction. There was no hypertension and/or heart disease due to renal dysfunction or any kidney condition. The renal tubular disorder was not symptomatic and there were no frequent attacks of colic with infection. Kidney calculi was noted. The Veteran had treatment for recurrent stone formation with drug therapy required. There were no signs or symptoms due to urolithiasis. There was no history of recurrent symptomatic urinary tract or kidney infections. It was noted that the Veteran had malignant neoplasm in remission. The Veteran last had right nephrectomy surgery in March 2015. There were no residual conditions or complications due to the neoplasm. The Veteran’s creatinine level was 1.75. In a December 2020 DBQ, the Veteran did not take continuous medication or require dialysis. Persistent proteinuria was noted. The Veteran did not have hypertension and/or heart disease due to renal dysfunction or kidney condition. The renal tubular disorder was not symptomatic and there were no frequent attacks of colic with infection. The Veteran had kidney calculi. There was no treatment for recurrent stone formation. The Veteran did not have any signs or symptoms due to urolithiasis. There was no history of recurrent symptomatic urinary tract or kidney infection. The Veteran’s BUN level was normal at 16, and the creatinine level was 1.81. The examiner stated that the Veteran had a severe disability. He was diabetic and status post right kidney removal and had persistent left kidney dysfunction. His laboratory results were moderately to severely abnormal for kidney function. Additional post-service treatment records are silent for any evidence showing that the Veteran’s right perinephric leiomyosarcoma status post right nephrectomy was active following May 1, 2016. As noted above, the Veteran was treated for cancer of the kidney using radiation therapy which ended in January 2015. The Veteran underwent surgery for removal of his kidney due to cancer in March 2015. Overall, the exams and treatment records showed that the Veteran’s right perinephric leiomyosarcoma status post right nephrectomy went into remission after treatment. The Board finds these records adequate and highly probative in establishing that an evaluation of a 100 percent is not warranted, as the Veteran’s right perinephric leiomyosarcoma status post right nephrectomy was not active. Furthermore, there is no evidence in the record to show that the Veteran’s right perinephric leiomyosarcoma status post right nephrectomy was either reoccurring or metastasizing. Considering the totality of the evidence of record, the Board finds that the preponderance of the evidence of record weights against continuing a 100 percent rating after May 1, 2016, and as such, reduction of rating was appropriate. Although the Board is only considering whether the reduction was proper, for argument’s sake, the Board notes persistent proteinuria (albumin) was reported in the December 2020 VA examination. Under 38 C.F.R. § 4.115a, an 80 percent rating is warranted for renal dysfunction that exhibits persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. However, despite persistent proteinuria, there was there was no edema and Bun level was normal. Therefore, even if this was an increased rating claim, a higher disability rating would not be warranted. In summary, the Board is sympathetic to the Veteran’s claim. However, the Board is bound by laws and regulations that limit award of 100 percent disability rating to right perinephric leiomyosarcoma status post right nephrectomy that is currently active under Diagnostic Code 7528. Because the Veteran’s right perinephric leiomyosarcoma status post right nephrectomy is in remission, and not manifested by reoccurrence or metastasis, it must be rated based on the residual effects of the disease. The VA examinations and treatment records shows that the Veteran has some renal dysfunction. Therefore, the rating for his disability was properly reduced from 100 percent to 60 percent, and appropriately rated based on the renal dysfunction. Although the Veteran has generally reported that he still has the possibility of malignant tumor, he has not provided competent evidence that the right perinephric leiomyosarcoma status post right nephrectomy is not in remission. The medical evidence reflects that the disability is in remission with residual disability. (Continued on the next page)   The Board additionally notes that rating-reduction claims are different from increased-rating claims. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (“The BVA incorrectly phrased the issue in terms of whether appellant was entitled to an increased rating; in fact and in law, the issue presented to the BVA, and to this Court, is not whether the veteran was entitled to an increase but whether the reduction of appellant’s rating from 100% to 10% was proper.”); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (“This is a rating reduction case, not a rating increase case.”). As such, if a claim is appealed to the Board on the basis of a reduction only, there is no need to also discuss whether ratings in excess of the reduction are warranted. In this case, the Veteran disagrees with reduction but has not set forth argument for increase rating. Therefore, the Board need not discuss rating higher than the 60 percent currently assigned to residuals of his right perinephric leiomyosarcoma status post right nephrectomy. Thus, the Board finds that the reduction from 100 percent to 60 percent for right perinephric leiomyosarcoma status post right nephrectomy effective May 1, 2016, was proper. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.