Citation Nr: 21025051 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-35 108 DATE: April 27, 2021 ORDER The reduction in disability rating for service-connected residuals of prostate cancer status post prostatectomy, characterized as a voiding dysfunction, from 100 percent to 40 percent, effective June 1, 2017, was proper, and restoration of the 100 percent rating is denied. Entitlement to a 60 percent rating, for residuals of prostate cancer status post prostatectomy, characterized as a voiding dysfunction, from June 1, 2017, is granted. FINDING OF FACT 1. There had been no local recurrence or metastasis of the Veteran’s prostate cancer nor any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure in more than six months at the time of the reduction. 2. The Veteran’s voiding dysfunction, as a residual of his prostate cancer, now in remission, includes continual urine leakage and urinary incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day; his prostate cancer has not resulted in renal dysfunction. CONCLUSION OF LAW 1. The reduction in disability rating for service-connected prostate cancer from 100 percent to a 40 percent rating was proper, and restoration to the 100 percent rating for prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105 (e), 3.344, 4.115a, 4.115b, Diagnostic Code 7528. 2. The criteria for a disability rating of 60 percent for residuals of prostate cancer, to include voiding dysfunction, have been me from June 1, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.115A, 4.115B, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to March 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran initially requested a hearing before a Veterans Law Judge, in July 2020, he withdrew his hearing request and asked that his appeal be adjudicated directly. Reduction The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in disability rating of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the Veteran’s condition). When the propriety of a rating reduction is at issue, the focus is on the actions of the RO 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 evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). Specifically, where a reduction in the disability rating of a service-connected disability or employability status is considered warranted, and the reduction would result in the 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. 38 C.F.R. § 3.105 (e). The beneficiary must be notified at his or her last address of record of the action contemplated and furnished detailed reasons therefore and must be given 60 days for the presentation of new evidence to show that compensation should be continued at the present level. Id. 1. The reduction in disability rating for service-connected residuals of prostate cancer status post prostatectomy, characterized as a voiding dysfunction, from 100 percent to 40 percent, effective June 1, 2017, was proper. The Veteran appeals the reduction of his service-connected residuals of prostate cancer status post prostatectomy, characterized as a voiding dysfunction. Specifically, he has indicated that he believes his disability is more severe than contemplated by the rating assigned following the reduction. After a review of the record, the Board of Veterans’ Appeals (Board) finds that the reduction was proper. Here, a February 2016 rating decision granted the Veteran service connection for prostate cancer and assigned a 100 percent disability rating under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528, effective September 29, 2015, a March 2016 rating decision adjusted his effective date to October 5, 2015. At his August 2016 VA examination, it was noted that the Veteran’s prostate cancer was in remission. The record shows that the Veteran’s PSA (prostate specific antigen) was measured at between .01 and .03 from April 2016 until January 2017 when it was measured at .04. From April 2017 until March 2019 his PSA was measured at .02, in March 2019 his PSA was measured at .04. During the routine testing of the Veteran’s PSA, there was no indication that his cancer had reemerged, indeed, a November 2018 medical note indicates that the Veteran’s cancer remained in remission. After review, the Board finds that the procedural guidelines of 38 C.F.R. § 3.105 (e) were followed by the RO. As stated above, the Veteran was notified of the RO’s intent to reduce his rating for his prostate cancer residuals by letter dated in September 2016 to his address of record. Thereafter, he was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. See 38 C.F.R. § 3.105 (e). After the Veteran failed to respond, final action to reduce the rating for his prostate cancer was taken pursuant to 38 C.F.R. § 3.105 (e) in a March 2017 rating decision. Consequently, having decided that the process required to reduce the Veteran’s rating was correctly followed by the RO, the remaining question for the Board is whether the reduction was warranted. The Veteran’s prostate cancer was rated as 100 percent disabling October 5, 2015, to June 1, 2017, under 38 C.F.R. § 4.115b, DC 7528. DC 7528, which pertains to malignant neoplasms of the genitourinary system, notes the following: following the cessation of surgery, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months and 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). The rating criteria also provide that if there has been no local reoccurrence or metastasis, a Veteran’s cancer is then rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. In this case, the medical evidence of record shows that the Veteran underwent a prostatectomy in February 2016. He was noted to be in remission as early as August 2016 when he underwent a VA examination. There has been no evidence of further cancer. The Board acknowledges the Veteran’s contentions that the 40 percent rating assigned following the reduction was inadequate. However, there was no evidence of record to suggest continuance of treatment or local reoccurrence or metastasis. As such, the Veteran’s residuals of the prostate cancer were to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever was the predominant disability. This was accomplished via a September 2016 rating decision awarding the Veteran a 40 percent rating for service-connected prostate cancer residuals effective June 1, 2017. Therefore, the reduction itself was proper. The Board will address the propriety of the 40 percent rating assigned below. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal in this matter, entitlement to compensation has already been established, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). “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 required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. 2. Entitlement to a rating in excess of 40 percent, for residuals of prostate cancer status post prostatectomy, characterized as a voiding dysfunction, from June 1, 2017. The Veteran’s service-connected for residuals of prostate cancer status post prostatectomy was reduced from 100 percent to 40 percent effective June 1, 2017. The Veteran asserts that the rating assigned since June 1, 2017, does not adequately contemplate the severity of his residuals of prostate cancer status post prostatectomy, characterized as a voiding dysfunction. The Board finds that the maximum 60 percent rating should be granted from June1, 2017, based on voiding dysfunction. As noted above, the Veteran is currently in receipt of a 40 percent disability rating for residuals of prostate cancer under 38 C.F.R. § 4.115b, Diagnostic Code 7528, which compensates for neoplasms of the genitourinary system, such as the prostate. Under DC 7528, a 100 percent rating is assigned for malignant neoplasms of the genitourinary system. 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 § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, the disability is then to be rated based on residuals as either a voiding dysfunction or a renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115B, DC 7528. A voiding dysfunction is assigned a 40 percent rating when there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent maximum rating is assigned for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115A. Also for consideration when rating residuals of malignant neoplasms of the genitourinary system are renal dysfunctions. In the present matter, as is discussed below, no such residuals have been identified. Therefore consideration of a rating based on renal dysfunction is not for consideration at this time. In August 2016, the Veteran was afforded a VA examination which confirmed his that his prostate cancer was now in remission. He was also diagnosed with urinary incontinence and urinary frequency, as residuals of his prostate cancer. He was also found to have erectile dysfunction (which is rated separately and not part of this appeal). No renal involvement was identified his voiding dysfunction included urinary leakage requiring up to 4 changes of absorbent material per day. His voiding interval was less than 1 hour, with him waking 3 to 4 times per night to void. His voiding dysfunction included hesitancy, slow stream, weak stream, and decreased force of stream. He did not have a history of urinary tract infections. No other residuals of his condition were identified. In his notice of disagreement, submitted in March 2017, the Veteran stated that his urinary voiding issues required him to change absorbent materials six to ten times per day, with him urinating up to 20 times per day. He reported that his doctor had discussed issuing a catheter. VA treatment records from October 2016, indicated that urinary voiding issues required him to change absorbent materials twelve times per day. VA treatment records dated in January 2017 indicated that his urinary voiding issues required him to change absorbent materials ten to twelve times per day, In his VA Form 9 (Appeal to the Board of Veterans’ Appeals), the Veteran asserted that he was required to change absorbent materials over 4 times per day. The Veteran is competent to report observable symptomatology, to include the number of times he is required to change absorbent material due to voiding frequency and dysfunction. This evidence is also credible in that it is supported by medical evidence, also documenting such frequent voiding issues. (Continued on the next page)   As discussed above, the Veteran’s prostate cancer is in remission, and therefore a 100 percent rating is no longer appropriate under the diagnostic criteria. However, given the evidence in the record documenting continual urine leakage, the Board will grant the Veteran the maximum 60 percent rating for his voiding dysfunction, as the sole residual off his prostate cancer, per the rating criteria. To this extent, the appeal is granted. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Attorney Advisor 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.