Citation Nr: 21040692 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-58 564 DATE: July 6, 2021 ORDER The appeal seeking restoration of a 100 percent rating for prostate cancer, which was reduced to 40 percent, effective November 1, 2016 is denied. FINDING OF FACT A November 2014 rating decision proposed to reduce the rating for prostate cancer from 100 percent to 40 percent; a November 14, 2014 letter notified the Veteran of the proposed reduction and an August 2016 rating decision implemented a reduction to 40 percent, effective November 1, 2016. CONCLUSION OF LAW The reduction of the rating for the Veteran's prostate cancer from 100 percent to 40 percent, effective November 1, 2016, did not involve a due process violation, was in accordance with facts found and governing law, and was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.115(b), Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2016 Department of Veterans Affairs (VA) rating decision which reduced the rating for prostate cancer from 100 to 40 percent, effective November 1, 2016. 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, and the Regional Office (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). Here, the rating reduction did not violate the due process provisions of 38 C.F.R. § 3.105(e) because the Veteran was given notice of the proposed reduction. A November 2014 rating decision proposed that the rating for residuals of prostate cancer be reduced to 40 percent. The November 2014 notification letter also advised him that he had 60 days to submit additional evidence. No additional evidence was received, and an August 2016 rating decision implemented the reduction of the rating to 40 percent, effective November 1, 2016 (prospectively). The Board finds that the RO complied with the due process requirements in 38 C.F.R. § 3.105(e) governing rating reductions; the Veteran was not denied due process. 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 August 2016 rating decision reduced the rating for prostate cancer that had been in effect since August 2009, 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. 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), DC 7528. Under 38 C.F.R. § 4.115(b), DC 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), DC 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. § 4.115(a). 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 November 1, 2016, have not been met. Private treatment records indicate that the Veteran was diagnosed with prostate cancer in in 2010 and underwent a proctectomy, and radiation treatment which were completed in 2012. VA treatment records show that the Veteran's PSA levels were as follows: .02 ng/ml in March 2013; less than .01 ng/ml in May 2014; .01 ng/ml in June 2015; .02 ng/ml in July 2016 and .02 ng/ml in October 2016. On September 2014 VA examination, the Veteran's prostate cancer was noted to be in remission. The examiner noted that the Veteran had voiding function less than 2 times per day; requires absorbent materials which must be changed 2 times per day; daytime voiding interval between 1 and 2 hours; and nighttime awakening to void 5 or more times. The Board finds that the rating reduction from 100 percent to 40 percent, effective August 1, 2019 was supported by the factual record, was in accordance with the governing law and regulations, and was proper. The September 2014 VA examiner reviewed the Veteran's medical record, elicited history from the Veteran, and conducted a thorough examination, noting both his reported symptoms and the examiner's observations. Additionally, treatment records do not show the prostate cancer is currently active or that he required absorbent material changes more than 2 times per day. The 100 percent rating was based on the diagnosis of carcinoma of the prostate (See Code 7528). This rating was to be in effect for six months following the cessation of treatment for cancer (which the record shows was in 2012). The Veteran was examined by a VA examiner in September 2014, more than six months following the completion of his treatment for prostate cancer. Rather than being prejudiced by the delay, it afforded him a prolonged period of a 100 percent rating. Accordingly, the evidence of record shows that the reduction in the rating for the Veteran's prostate cancer from 100 percent to 40 percent was supported by the facts shown. The preponderance of the evidence is against the Veteran's claim seeking restoration of a 100 percent rating for his prostate cancer. Accordingly, the benefit of the doubt doctrine does not apply. The appeal in this matter must be denied. See 38 C.F.R. § 5107(b). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.