Citation Nr: 21012714 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-34 297 DATE: March 5, 2021 ORDER From August 1, 2016, the Veteran’s disability compensation rate for prostate cancer was properly reduced from 100 percent to 40 percent, and the claim for restoration is denied. FINDING OF FACT From August 1, 2016, the evidence of record shows sustained improvement of the Veteran’s prostate cancer insofar as the condition is no longer manifested by malignant neoplasms of the genitourinary system and is now marked by the urinary symptom of awakening to void five or more times per night. CONCLUSION OF LAW The reduction of the disability rating for residuals of prostate cancer from 100 percent to 40 percent, effective August 1, 2016, was proper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.344, 3.400, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to August 1970. A videoconference hearing was held before the undersigned Veterans Law Judge (VLJ) in April 2019. A transcript is of record. During his hearing, the Veteran reported undergoing medical treatment with bloodwork the day prior to the hearing. The Veteran requested for the record to remain open for 60 days after the hearing so the treatment records from this medical appointment, including bloodwork results, could be submitted. Although the record remained open, the Veteran did not submit the identified outstanding treatment records. This matter was remanded by the Board in August 2019 to obtain the relevant treatment records. The Agency of Original Jurisdiction (AOJ) attempted to obtain the relevant medical records. See November 2019 correspondence. The Veteran did not respond. The Board emphasizes that “the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that VA has fulfilled its duty to assist, and adjudication of the claim at this time is warranted. Rating Reduction In the May 2016 rating decision appealed to the Board, the Veteran’s disability compensation rate for prostate cancer was reduced from 100 percent to 40 percent, effective August 1, 2016. The Veteran has asserted that this reduction in his disability rating for residuals of prostate cancer was improper. See April 2019 hearing transcript. Procedurally, where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons supporting the proposed reduction. 38 C.F.R. § 3.105(e). The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and must be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Id. In this case, a March 2016 letter provided the Veteran with appropriate notice of a proposed reduction of his prostate cancer rating from 100 percent to 40 percent. In a May 2016 rating decision, the AOJ effectuated the proposed reduction, effective August 1, 2016, noting that the Veteran had not submitted any evidence that the reduction should not be made. Accordingly, the Board finds that the AOJ’s reduction of the Veteran’s prostate cancer rating was procedurally in accordance with the notice provisions under 38 C.F.R. § 3.105. Additional safeguards apply to the reduction in a rating that has been in effect for more than five years. 38 C.F.R. § 3.344(b), (c). The AOJ’s May 2016 rating decision reduced the rating for prostate cancer that had been in effect since September 2008, for more than five years. Ratings in effect for five years or more may be reduced only if there is evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations. The provisions prohibit a reduction on the basis of a single examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a), (b); see Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). A rating reduction is not proper unless a veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). A veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, prostate cancer was rated under the criteria found at 38 C.F.R. § 4.115(b), Diagnostic Code 7528. Under 38 C.F.R. § 4.115(b), Diagnostic Code 7528, for malignant neoplasms of the genitourinary system, a 100 percent rating is assigned for active malignancy. A note after this code 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 rating 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. Id. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115(a), Diagnostic Code 7528. Regarding urine leakage, a 20 percent rating is warranted when the wearing of absorbent materials must be changed less than two times per day. A 40 percent rating is warranted when the wearing of absorbent materials must be changed two to four times per day. A 60 percent rating is warranted when use of an appliance is required or wearing of absorbent materials must be changed more than four times per day. See 38 C.F.R. § 4.115a. As for urinary frequency, a 10 percent rating is warranted with daytime voiding intervals between two and three hours or awakening to void two times per night. A 20 percent rating is warranted with daytime voiding intervals between one and two hours or awakening to void three to four times per night. A 40 percent rating is warranted with daytime voiding intervals of less than an hour or awakening to void five or more times per night. See 38 C.F.R. § 4.115(a). The highest rating available based on obstructed voiding is 30 percent. In this case, the Board finds that improvement of the prostate cancer has been demonstrated, and that the improvement was maintained under the ordinary conditions of life and work; therefore, the rating reduction was proper and the criteria for restoration of a 100 percent rating for prostate cancer, effective August 1, 2016, have not been met. Private treatment records indicate that the Veteran was diagnosed with prostate cancer in November 2007 and underwent radiation treatment and hormone treatment from May 2008 to July 2008. The Veteran underwent hormone treatment every 4 months from approximately December 2008 to December 2013. VA treatment records indicate that the Veteran’s bone scan in June 2012 showed no interval change and no evidence of osteoblastic metastatic disease. In September 2012, the Veteran’s prostate-specific antigen (PSA) blood test level indicated a result of .13 ng/mL. The Veteran’s PSA was noted to be .1 ng/mL in December 2012. On May 2013 VA examination, the Veteran’s prostate cancer was noted to be in remission. However, the VA examiner noted that the Veteran continued to undergo hormone therapy. In June 2013, the Veteran’s PSA level was noted to be 1.44 ng/mL. In June 2014, the PSA level was noted to be 1.8 ng/mL. On June 2014 VA examination, the VA examiner found that the Veteran had active disease and was receiving hormonal injection treatment. In July 2014, VA treatment records indicate that the Veteran reported that his private urologist, Dr. C.L., was aware of the Veteran’s rapid increase in PSA levels and had restarted him on hormone therapy for prostate cancer. In July 2015, the Veteran’s PSA level was noted to be 1.51 ng/mL. In October 2015, his PSA level was .2 ng/mL. On November 2015 VA examination, the VA examiner found that the Veteran’s prostate cancer was in remission after the completion of hormone therapy in October 2015. The Veteran was noted to have voiding dysfunction with a daytime voiding interval between 4 hours or greater and nighttime awakening to void approximately 5 to 6 times per night. In January 2016, the Veteran’s private urologist, Dr. C.L., reported that the Veteran was still undergoing treatment for his prostate cancer. However, VA subsequently received the Veteran’s private treatment records from Dr. C.L. in January 2016showing that Dr. C.L. had noted in October 2015 that the Veteran’s PSA level of .2 ng/mL indicated normal results. In a January 2016 acceptable clinical evidence (ACE) examination, a separate VA examiner noted that the January 2016 statement from the Veteran’s private urologist did not provide any useful clinical information regarding the current state of the Veteran’s prostate cancer, the details of the treatment regimen, indication for treatment, or results of any diagnostic studies. The VA examiner noted that without reviewing the full private medical records and knowing the indication for treatment and results of any new diagnostic studies, the VA examiner was unable to determine whether the Veteran’s prostate cancer was in remission currently. The VA examiner concluded, however, that based on the available October 2015 PSA level, the Veteran’s prostate cancer was in remission. In March 2016, the private urologist’s office confirmed that October 28, 2015 was the last date of medical service for the Veteran, and that the Veteran had no further treatments, testing, or follow-up evaluations after the October 2015 private medical treatment. In a March 2016 addendum opinion, the original VA examiner noted that, as the Veteran was no longer being treated for prostate cancer, there was “no evidence of disease,” or NED, regarding the Veteran’s prostate cancer. During the April 2019 Board hearing, the Veteran reported that he had been treated for residuals of prostate cancer in remission, to include medical treatment occurring the day prior to the hearing. The Veteran essentially contended that the treatment and bloodwork from the April 2019 private medical records may have indicated that his residuals of prostate cancer could warrant a higher rating than 40 percent. However, as noted at the outset, the Veteran did not provide VA with authorization to obtain the private treatment records identified during the April 2019 Board hearing. The record also shows that the Veteran did not submit any further private urology treatment records or bloodwork showing PSA levels, even after the record was held open for 60 days following the Board hearing nor after the issue was specifically remanded to obtain the aforementioned records. Because prostate cancer was inactive with no local recurrence or metastasis, and voiding dysfunction was the predominant residual disability, the AOJ assigned a 40 percent schedular disability rating based on residual urinary frequency manifested by nighttime awakening to void five or more times, as directed by the rating criteria under DC 7528. The Board finds that the November 2015 VA examination, January 2016 ACE VA examination, and March 2016 addendum opinion provide the most probative evidence regarding the state of the Veteran’s prostate cancer at the time of the rating reduction. The November 2015 VA examination was conducted in-person, and each opinion was based on the available VA and private treatment records, specifically to include bloodwork showing PSA levels. The conclusions were based on clear rationales, accurately considered the Veteran’s medical history, and provided sufficient rationale for the opinions provided. Accordingly, these opinions are found to carry significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The Board acknowledges that the January 2016 private medical opinion noted that Dr. C.L. reported that the Veteran was still undergoing treatment for his prostate cancer. However, the contemporaneous bloodwork shows that the Veteran’s PSA level was documented as .2 ng/mL in October 2015, and the Veteran did not have any further follow-up appointments scheduled after the October 2015 normal PSA results. Dr. C.L. specifically noted the Veteran’s October 2015 PSA testing showed normal results and that the prostate cancer was controlled. In the January 2016 correspondence, Dr. C.L. did not provide any clinical evidence or indication that the Veteran’s prostate cancer was active. Accordingly, the opinion is afforded no probative value regarding the issue of whether the Veteran had active prostate cancer at the time of the rating reduction. At the time of the rating reduction, the medical evidence of record showed that the Veteran’s prostate cancer was NED. The pertinent findings regarding prostate cancer and its residuals demonstrated at the time of the rating reduction are consistent with the post-reduction evidence, which similarly shows sustained improvement of prostate cancer so that the criteria for a 100 percent rating under DC 7528 for prostate cancer residuals are not met. The rating schedule for prostate cancer entitles a Veteran suffering from this condition to a 100 percent disability rating for this condition only while the Veteran has malignant neoplasms somewhere in his genitourinary system. 38 C.F.R. § 4.115b, DC 7528, Note. In the event that surgical, radiation, or other therapy results in the removal or termination of malignant neoplasms from the genitourinary symptoms, the code specifically contemplates that a lesser rating may be assigned by evaluating the residuals as either renal or voiding dysfunction. Id. On November 2015 VA examination, the VA examiner noted that there was no renal dysfunction. The VA examiner noted that the Veteran reported urinary leakage that did not require the wearing of absorbent material. The Veteran reported a daytime voiding interval between 4 hours or greater and awakening to void five or more times per night. During the April 2019 Board hearing, the Veteran indicated that the bloodwork completed for Dr. C.L. the day before the hearing may demonstrate that a rating in excess of 40 percent is warranted. However, as noted above, VA made reasonable efforts to obtain the private medical records, but the Veteran did not return a signed medical release form or send the private medical records. As such, the records could not be considered. The Veteran also testified at the hearing that he went to the bathroom “maybe two more times a night than the last time” he was evaluated by VA and denied the use of any absorbent materials. The Veteran is assigned a 40 percent disability rating for voiding dysfunction symptoms based on frequency. The record indicates that the Veteran does not have urine leakage that requires the use of absorbent material. As such, the record does not show that the Veteran meets the only voiding dysfunction criteria in excess of 40 percent, which is warranted when the record demonstrates urine leakage or incontinence requiring the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. The record shows that the Veteran’s prostate cancer residuals manifests in urinary frequency of awakening to void five or more times per night. Accordingly, the Veteran’s prostate cancer residuals are adequately contemplated by the rating criteria for prostate cancer residuals of urinary frequency, and a rating in excess of 40 percent is not warranted. For the foregoing reasons, the Board finds that the preponderance of the evidence demonstrates sustained improvement of the prostate cancer so as to warrant a rating reduction from 100 percent to 40 percent effective from August 1, 2016; therefore, the reduction was proper, and restoration of the 100 percent rating is not warranted. 38 C.F.R. § 3.105(e). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, 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.