Citation Nr: 21040253 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-58 379A DATE: July 2, 2021 ORDER The discontinuance of the 100 percent evaluation for residuals of prostate cancer from January 1, 2015 was proper. Entitlement to an increased 60 percent rating for prostate cancer residuals from January 1, 2015 is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to restoration of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) from January 1, 2015 is denied. FINDINGS OF FACT 1. The discontinuance of the 100 percent evaluation 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 (DC) 7528. 2. From January 1, 2015, the evidence of record does not demonstrate that the Veteran continued to receive surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure; 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 evaluation for residuals of prostate cancer would be appropriate under 38 C.F.R. § 4.115b, DC 7528. 3. From January 1, 2015, the Veteran's prostate cancer residuals more nearly approximate 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 four times per day. 4. From January 1, 2015, the Veteran does not have a service-connected disability rated as total and additional service connected disability ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent evaluation for residuals of prostate cancer effective January 1, 2015, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 4.1, 4.7, 4.115b, DC 7528. 2. The criteria for a 60 percent rating, but not higher, for prostate cancer residuals for the period from January 1, 2015 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, DC 7528. 3. From January 1, 2015, the criteria for restoration of SMC pursuant to 38 U.S.C. § 1114 (s) have not been met. 38 U.S.C. § 1114 (s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1969, with service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which decreased its rating for prostate cancer, evaluating it as 20 percent disabling from January 1, 2015, and discontinued SMC effective January 1, 2015. The RO initially granted service connection for prostate cancer, assigning a 100 percent disability rating from November 8, 2011 in an October 2012 rating decision. In June 2014, the RO proposed reducing the rating for prostate cancer from 100 percent to 20 percent, and in the previously mentioned October 2014 rating decision, effectuated this reduction effective January 1, 2015. The Veteran filed his notice of disagreement in February 2015, was issued a statement of the case in October 2016, and in December 2016 perfected his appeal to the Board. Concerning the reduction, the Board notes that this matter does not necessarily include a claim for an increased rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). In this case, however, the rationale provided by the RO, during the appeal period, discussed the claim as one for increase. Specifically, in the November 2016 statement of the case, the RO indicated that a higher rating of 60 percent was not warranted unless there were certain symptoms of renal or voiding dysfunction. Moreover, in an October 2016 rating decision, the RO granted a 40 percent disability rating for the Veteran's prostate cancer, effective January 1, 2015. Accordingly, the Board has characterized the issues as including an increased rating claim, as stated on the title page. Rating Reduction From November 08, 2011 to January 1, 2015, an initial 100 percent rating was assigned due to the Veteran's prostate cancer diagnosis. Since January 1, 2015, the Veteran's prostate cancer disability has been rated as 40 percent disabling based on residuals (voiding dysfunction). The Veteran disagrees with the October 2014 rating decision that reduced his initial disability rating for prostate cancer, effective January 1, 2015. This case has already resulted in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's prostate cancer is rated under 38 C.F.R. § 4.115b, DC 7528, which contemplates malignant neoplasms of the genitourinary system (i.e. prostate cancer). Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528, Note. Here, the Veteran has contended that he has voiding and urinary problems, but there is no evidence of renal dysfunction. Thus, his prostate cancer residuals will be evaluated as voiding dysfunction. Under 38 C.F.R. § 3.105 (e), where a reduction in an 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 must be prepared setting forth all material facts and reasons. In addition, 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 must 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 a 60-day period from the date of notice to the Veteran expires. Id. 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, DC 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" subject to the above cited regulations. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (finding 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, DC 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 essentially a "staged" rating case, but it is not a formal reduction case because of the temporal element of DC 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 DC 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 DC 7528 in this case. The Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105 (e). Specifically, the Board notes that the Veteran underwent a VA examination of his prostate cancer residuals in April 2014. In a June 2014 rating decision, the Veteran's 100 percent evaluation for that disability was proposed to be reduced to 20 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 2014 VA letter. While the Veteran did request a hearing within 60 days of the VA letter, the evidence of record indicates that he was unable to attend the hearing, rescheduled the hearing, and ultimately withdrew the request for a hearing. The RO finalized the discontinuance of the Veteran's 100 percent evaluation for prostate cancer residuals in an October 2014 rating decision, reducing the rating to 20 percent, effective January 1, 2015. The effective date of the reduction, January 1, 2015, was the day after the last day of the month after expiration of the 60-day period from the date of notice of the October 2014 final rating action, as set forth in the applicable VA regulation. In light of these facts, the Board finds that the particularized procedure for discontinuing the Veteran's 100 percent evaluation for his prostate cancer residuals 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 that there is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under DC 7528 after January 1, 2015. See 38 C.F.R. § 4.7. The evidence of record, including pertinent VA treatment records and VA examinations, does not reveal local recurrence or metastasis of the Veteran's malignant neoplasm of the genitourinary system-prostate cancer after January 1, 2015. October 2011 private treatment records reflect that the Veteran underwent radiation treatment for his prostate cancer. An April 2014 VA examination report reflects that the Veteran had radiation therapy to treat adenocarcinoma of the prostate, and has been in remission since treatment in 2012. The examiner noted that the Veteran had a voiding dysfunction which did not cause urine leakage or require use of an appliance, but caused increased urinary frequency with nighttime awakening to void 3 to 4 times. The voiding dysfunction did not cause signs or symptoms of obstructed voiding, the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections, but did have erectile dysfunction. The Veteran reported that his erectile dysfunction started at the time of his prostate cancer diagnosis and has persisted. The Veteran indicated that he is not able to achieve an erection sufficient for penetration and ejaculation with or without medication, but he did not report retrograde ejaculation. The examination report indicated that the Veteran did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. The examiner stated that the Veteran's prostate cancer residuals did not impact his ability to work. In an April 2016 Report of General Information, the Veteran indicated that he expressed to his examiner that he suffered from nighttime urinary incontinence with a frequency of 7 or more times a night. May 2016 VA treatment records reflect the Veteran was treated for urinary symptoms of frequency, incomplete emptying, urgency with leakage, weak stream, straining and nocturia more than 5 times with incontinence. The Veteran reported wearing guards, and reported control during the daytime, but not at night. Neither the VA examination report, nor the VA treatment records provide evidence of local recurrence or metastasis, and the Veteran has not provided any additional evidence of any recurrence or metastasis of prostate cancer. There is no evidence or allegation the Veteran underwent further surgical procedure, radiation, chemotherapy, or other therapeutic procedure after January 1, 2015. For the foregoing reasons, the Board finds that in accordance with the provisions of DC 7528, the RO correctly provided the Veteran with a mandatory VA examination in April 2014, and the 100 percent rating was correctly continued for well over six months after the October 2011 radiation therapy treatment. The Veteran reported residuals of erectile dysfunction, as well as urinary frequency and incontinence, but there was no evidence of active prostate cancer or any active malignancy. Therefore, given the lack of recurrence or metastasis of the prostate cancer on or after January 1, 2015, the initial 100 percent rating for prostate cancer was properly discontinued. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Prostate Cancer Residuals The Veteran's prostate cancer residuals are currently rated 40 percent disabling under DC 7528 which contemplates malignant neoplasms of the genitourinary system (i.e. prostate cancer). Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528, Note. Here, the evidence of record, including as provided by the aforementioned DBQs, reflects that the Veteran has voiding and urinary problems, but there is no evidence of renal dysfunction. Thus, his prostate cancer residuals will be evaluated as voiding dysfunction. As applicable to this case, voiding dysfunction is rated as urine leakage, frequency, and obstructed voiding. Urine leakage contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 40 percent rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted 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 four times per day. 38 C.F.R. § 4.115a. For a rating based on urinary frequency, a 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. Id. For a rating based on obstructed voiding, urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. A 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post void residuals greater than 150cc; uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every 2 to 3 months. An April 2014 VA examination report reflects that the Veteran had radiation therapy to treat adenocarcinoma of the prostate, and has been in remission since treatment in 2012. The examiner noted that the Veteran had a voiding dysfunction which did not cause urine leakage or require use of an appliance, but caused increased urinary frequency with nighttime awakening to void 3 to 4 times. The voiding dysfunction did not cause signs or symptoms of obstructed voiding, the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections, but did have erectile dysfunction. The Veteran reported that his erectile dysfunction started at the time of his prostate cancer diagnosis and has persisted. The Veteran indicated that he is not able to achieve an erection sufficient for penetration and ejaculation with or without medication, but he did not report retrograde ejaculation. The examination report indicated that the Veteran did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. The examiner stated that the Veteran's prostate cancer residuals did not impact his ability to work. In an April 2016 Report of General Information, the Veteran indicated that he expressed to his examiner that he suffered from nighttime urinary incontinence with a frequency of 7 or more times a night. May 2016 VA treatment records reflect the Veteran was treated for urinary symptoms of frequency, incomplete emptying, urgency with leakage, weak stream, straining and nocturia more than 5 times with incontinence. The Veteran reported wearing guards, and reported control during the daytime, but not at night. The evidence of record reflects that for the period from January 1, 2015, the Veteran's prostate cancer residuals more nearly approximate the criteria for a 60 percent rating for a voiding dysfunction. While the April 2014 VA examination report indicates that the Veteran's prostate cancer residuals do not require use of an appliance, and does not cause urinary leakage, the Veteran has provided competent and credible evidence of nighttime urinary incontinence with a frequency of 7 or more times a night. Additionally, his VA treatment records indicate that he suffers from urgency with leakage, and nocturia with incontinence. The Veteran has also reported wearing guards. The evidence thus reflects that the Veteran's prostate cancer residuals more nearly approximate urinary incontinence warranting a higher, 60 percent rating from January 1, 2015. The 60 percent rating for a voiding dysfunction is the maximum schedular evaluation assignable. However, the above evidence reflects that the Veteran has not had any active prostate cancer during the claim period, and that he has not received any cancer treatment since his radiation therapy in 2011. Thus, a 100 percent rating under DC 7528 is not warranted at any time during the claim period, and an increased rating higher than 60 percent for the Veteran's prostate cancer residuals is not warranted. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). SMC Pursuant to 38 U.S.C. § 1114 (s), when a veteran has a service-connected disability rated as total and has additional service connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). The United States Court of Appeals for Veterans Claims has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 280 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). In the decision above, the Board has not restored the 100 percent rating for the Veteran's prostate cancer residuals, and the Veteran does not have a 100 percent rating for any other service-connected disability from January 1, 2015. The Veteran was receiving SMC(s) when he was in receipt of the 100 percent rating for prostate cancer residuals, as he was also in receipt of service connection for posttraumatic stress disorder rated 50 percent, diabetes mellitus type 2 rated 20 percent, left and right upper and lower extremity peripheral neuropathy each rated 20 percent disabling, and hypertension rated noncompensable, meeting the additional service connected disability independently ratable at 60 percent or more criterion during the period prior to January 1, 2015. However, as the Veteran is no longer in receipt of a 100 percent rating for his service connected prostate cancer residuals from January 1, 2015 and is not in receipt of a 100 percent rating for any service connected disability, he no longer meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114 (s) during this period. Accordingly, entitlement to SMC is not warranted from January 1, 2015. Rachel Walker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.