Citation Nr: 21022089 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-10 406 DATE: April 14, 2021 ORDER Entitlement to an initial increased rating for residuals of prostate cancer from January 1, 2016 through September 29, 2019, to include the propriety of the discontinuance of the 100 percent rating for prostate cancer is denied. FINDINGS OF FACT 1. In March 2014, the Regional Office (RO) granted service connection for prostate cancer and assigned a 100 percent rating effective December 13, 2013. 2. In an October 2014 rating decision, the RO proposed a reduction in the rating for the Veteran's service-connected prostate cancer from 100 percent to 40 percent based on the disease being in remission; the RO provided the Veteran with proper notice of this proposed action in correspondence dated October 31, 2014. 3. In an October 2015 rating decision, the RO discontinued the 100 percent rating for prostate cancer and assigned a 40 percent rating effective January 1, 2016. 4. From January 1, 2016 through September 29, 2019, the Veteran’s service-connected residuals have resulted in urine leakage requiring absorbent material which must be changed 2 to 4 times per day but does not require an appliance; daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times; markedly slow stream; however there is no evidence of renal dysfunction or the wearing of absorbent materials that must be changed more than four times per day. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent rating for prostate cancer was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 4.115b, Diagnostic Code 7528. 2. The criteria for the evaluation of prostate cancer in excess of 40 percent disabling from January 1, 2016 through September 29, 2019 is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Regional Office (RO) that decreased the Veteran’s disability rating from 100 percent to 40 percent disabling, effective January 1, 2016. The Board notes that during the pendency of the appeal the Veteran’s prostate cancer reoccurred and a 100 percent disability rating has been assigned effective September 30, 2019. In November 2019, the Veteran testified via video conference before the undersigned. The Board notes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not also contemplate a claim for an increased rating. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the Veteran has submitted correspondence in connection with the appeal that discusses the severity of his prostate cancer residuals, and the RO issued a statement of the case (SOC) specifically addressing the 40 percent evaluation and finding that a higher rating is not warranted. Accordingly, the Veteran's appeal before the Board includes both the propriety of the rating reduction and a claim for an increased rating from January 1, 2016 through September 29, 2019. Entitlement to an initial increased rating for residuals of prostate cancer from January 1, 2016 through September 29, 2019, to include the propriety of the discontinuance of the 100 percent rating for prostate cancer Propriety of Rating Reduction Generally, the propriety of a rating reduction is a separate issue from a claim for an increased evaluation. Where the RO processes the appeal of a reduction as if it were an increased rating claim, the Board waives any jurisdictional or procedural barriers to consideration of that claim. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) ("This is a rating reduction case, not a rating increase case."); see also Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). Here, the Veteran has submitted correspondence in connection with the appeal that discusses the severity of his prostate cancer residuals, and the RO processed the appeal of the October 2015 reduction as both a challenge of the reduction and an increased rating claim. The October 2015 rating decision and February 2017 statement of the case (SOC) not only reduced the Veteran's rating from 100 percent to40 percent, it explained why the Veteran was not entitled to a higher rating of 60 percent. Accordingly, because the RO treated the Veteran's claim as challenging both the reduction of his rating and the assignment of a 40 percent rating from January 1, 2016 through September 29, 2019, the RO has led the Veteran to believe that all of those issues are on appeal, the Veteran's appeal before the Board includes both the propriety of the rating reduction and a claim for an increased rating. The provisions of 38 C.F.R. § 3.105 (e) provide for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction and notice giving the Veteran 60 days to submit additional evidence and 30 days to request a predetermination hearing. If a hearing is not requested and reduction is still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105 (e), (i)(2). 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 a Veteran of the final action expires. 38 C.F.R. § 3.105 (e). The Veteran was granted service connection for prostate cancer in a March 2014 rating decision. In that decision, the RO assigned a 100 percent disability rating effective December 13, 2013 based on VA prostate biopsy findings showing active malignancy. 38 C.F.R. § 4.115b , Diagnostic Code 7528. In October 2014, the RO issued a decision proposing to reduce the Veteran's disability rating for prostate cancer to 40 percent, based on medical evidence, including an October 2014 VA examination, that documented inactive disease. The Veteran does not allege that his prostate cancer was active at that time. As already noted, the Veteran was notified of the RO's intent to discontinue the 100 percent rating for his service-connected prostate cancer by letter dated October 31, 2014. He did not request a hearing regarding that issue. Final action to reduce the 100 percent rating to 40 percent was taken pursuant to 38 C.F.R. § 3.105 (e) in October 2015. The Veteran was informed of that decision by letter dated October 30, 2015. The reduction was made effective beginning January 1, 2016. Based on a review of this procedural history, the Board finds that the RO complied with all of the requirements of 38 C.F.R. § 3.105 (e). The Veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Moreover, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105 (e). The Veteran has not asserted that these procedural provisions were not followed. Thus, the Board finds that the RO appropriately followed the procedural actions to accomplish the discontinuance of the 100 percent rating, which resulted in a reduction of the Veteran's benefits. The Board finds that, for the reasons set forth above, reduction of the Veteran's 100 percent rating for prostate cancer was warranted, pursuant to 38 C.F.R. §§ 3.105 (e) and 4.115b, Diagnostic Code 7528. The Veteran’s cancer was in remission at the time, and did not recur until much later. Increased Rating Diagnostic Code 7528, malignant neoplasms of the genitourinary system, provides one disability level-100 percent-for active disease. A Note to that Code states 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 on that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e) (reduction in evaluation-compensation). If there has been no local recurrence or metastasis, a Veteran's cancer is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. As relevant here, under the criteria for urinary frequency, a rating of 20 percent is assigned for urinary frequency with daytime voiding interval between one and two hours or awakening to void three to four times per night. A maximum 40 percent rating is assigned for urinary frequency with daytime voiding interval less than one hour or awakening to void five or more times per night. Under the criteria for obstructive voiding, a maximum 30 percent rating is assigned for urinary retention requiring intermittent or continuous catherization. Under the criteria for urine leakage, 20 percent rating is assigned for requiring the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is assigned for requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is assigned for urine leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. This is the maximum schedular rating available for voiding dysfunction. 38 C.F.R. § 4.115a (2018). With respect to renal dysfunction, a 30 percent rating is assigned for constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is assigned for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight gain, or limitation of exertion. A 100 percent rating is warranted for renal dysfunction requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, or, BUN more than 80 mg%, or, creatinine more than 8 mg%, or, markedly decreased function of kidney or other organ systems, especially cardiovascular, a 100 percent evaluation is warranted. 38 C.F.R. § 4.115a (2018). The 40 percent rating assigned by the RO was based on VA treatment records that showed the Veteran’s PSA level was less than 0.1 and his main problems was incontinence which required use of 2-3 pads per day. An October 2014 VA prostate cancer examination noted that the Veteran's prostate cancer was in remission. The Veteran reported voiding dysfunction due to prostate cancer, causing urine leakage requiring absorbent material which must be changed less than 2 times per day but not requiring use of an appliance, daytime voiding interval less than 1 hour, and nighttime awakening to void 3 to 4 times. At the Veteran’s November 2019 hearing he stated that on average he changes his absorbent pad five times a day due to urinary leakage, has nighttime awakening about 4 times per night, and stated that his cancer had returned. A February 2020 VA examination reflects the Veteran’s residual symptoms of difficulty urinating and urinary incontinence. He had voiding dysfunction that caused increased urinary frequency of daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times. The voiding dysfunction also caused urinary leakage requiring the use of absorbent material that he changed 2 to 4 times per day. He did not require the use of an appliance. He also reported markedly slow stream. There was no history of recurrent symptomatic urinary tract or kidney infections. The Veteran also reported erectile dysfunction resulting from the prostate surgery, a condition he is separately service-connected. During a November 2020 VA prostate examination, the Veteran reported increased urinary urgency, frequency, nocturia, and incontinence. He had a voiding dysfunction that caused urine leakage that required the use of absorbent material which must be changed 2 to 4 times per day. The voiding dysfunction also caused urinary frequency with daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times per night. The Veteran’s voiding dysfunction did not require the use of an appliance or cause obstructed voiding. There was no history of recurrent symptomatic urinary tract or kidney infections. The Veteran’s report of the frequency of his voiding dysfunction has varied greatly. During VA examinations he consistently reported daytime voiding intervals between 1 to 3 hours and nighttime awakening to void 3 to 4 times per night, as well as the use of absorbent pads that required changing up to 4 times per day. In the Veteran’s November 2015 notice of disagreement, he stated he had to change his absorbent pads hourly. In the February 2017 Form 9 the Veteran stated he had to change absorbent pads more than 4 times per day. (Continued on the next page)   As stated previously, a 40 percent rating is assigned for requiring the wearing of absorbent materials which must be changed two to four times per day. Based on the Veteran's reported voiding dysfunction symptoms at the October 2014, February 2020, and November 2020 VA examinations, a 40 percent rating, but not higher, is warranted from January 1, 2016 through September 29, 2019. However, the Board also finds that a rating in excess of 40 percent for residuals of prostate cancer is not warranted at any point during the period under review. As the Veteran is in receipt of the maximum schedular rating available for urinary frequency, in order to warrant a higher rating, the evidence must show that a 60 percent rating is warranted under the criteria for urinary leakage or renal dysfunction. However, the medical evidence of record does not show renal dysfunction of any type or urine leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. As such, a rating higher than 40 percent is not warranted based on voiding dysfunction or renal dysfunction. 38 C.F.R. § 4.115a (2018). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.