Citation Nr: 22010568 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 18-14 075 DATE: February 24, 2022 ORDER The discontinuance of the 100 percent evaluation for service-connected prostate cancer was proper and restoration of the 100 percent evaluation is denied. Entitlement to an increased rating of 60 percent for residuals of prostate cancer is granted. FINDINGS OF FACT 1. Service connection and a 100 percent evaluation for prostate cancer was awarded in an November 2010 rating action; at the time the Veteran's prostate cancer was active. 2. A November 2013 rating action proposed to discontinue the 100 percent rating for prostate cancer based on the inactivity of the cancer; an April 2014 rating action effectuated the discontinuance and assigned a 20 percent rating based on residuals. 3. The procedural requirements of 38 C.F.R. § 3.105(e) were appropriately followed in this case. 4. At the time of the discontinuance of the rating and at all times since, the Veteran's prostate cancer was in remission. 5. The Veteran's voiding dysfunction has resulted in wearing absorbent materials that have to be changed more than four times a day, but it has not resulted in urinary tract infections (UTIs). 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 entitlement to an increased rating of 60 percent for residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. In September 2021, the Veteran appeared at a videoconference hearing before the undersigned. A transcript of the hearing is of record. 1. The appeal challenging the propriety of the reduction in the rating for prostate cancer from 100 percent disabling The Veteran and his representative contend that the RO erred in reducing his rating for prostate cancer from 100 percent disabling to 20 percent for residual voiding dysfunction. Though the Veteran acknowledges that the prostate cancer has been in remission through the period at issue, he believes that the possibility that the cancer can recur warrants retaining the 100 percent rating. The Veteran was granted service connection for prostate cancer in a November 2010 rating decision. In that decision, the RO assigned a 100 percent disability rating effective July 2010 based on examination findings showing active malignancy. 38 C.F.R. § 4.115b, Diagnostic Code 7528. In November 2013, the RO issued a decision proposing to reduce the Veteran's disability rating for prostate cancer to 20 percent, based on medical evidence, including a September 2013 VA examination, that documented inactive disease. The Veteran does not allege that his prostate cancer is active. The rating reduction provisions of 38 C.F.R. §§ 3.343 and 3.344 are not applicable in the present case. Here, the discontinuance of the 100 percent disability rating for service-connected prostate cancer was accomplished pursuant to the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528. In that regard, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer or its residuals. Therefore, the action taken by the RO was not a "rating reduction," as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 43233 (1992); Foster v. McDonough, No. 19-7442, 2021 U.S. App. Vet. Claims LEXIS 1848, *14-15 ("When [Diagnostic Code] 7528 is considered within its regulatory structure, it becomes even more apparent that the discontinuance of a 100 [percent] rating under [Diagnostic Code] 7528 is not a rating reduction.") Rather, the discontinuance of the 100 percent rating was procedural in nature and by operation of law. Thus, the Board need only determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the discontinuance of the 100 percent rating was proper by operation of law under Diagnostic Code 7528. 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 question of whether a disability has improved involves consideration of the applicable rating criteria. Prostate cancer was rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Board emphasizes that the rating schedule for prostate cancer has distinct requirements regarding the assignment of a 100 percent rating. Under Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and 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 38 C.F.R. § 3.105(e). 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 November 2013. He did not request a hearing regarding that issue. Final action to reduce the 100 percent rating to 20 percent was taken pursuant to 38 C.F.R. § 3.105(e) in April 2014. The Veteran was informed of that decision by letter dated April 2014. The reduction was made effective beginning July 2014. Based on a review of this procedural history, the Board finds that the RO complied with all 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. 38 C.F.R. § 3.105(e) ("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"). 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. As for the substantive provisions of the diagnostic code at issue, the record consistently shows, and the Veteran does not dispute, that the Veteran's prostate cancer has been in remission since well before the April 2014 rating action at issue. The September 2013 examiner, while no model of clarity of expression, provided PSA results and clearly intended to convey that the Veteran's prostate cancer was no longer active. A June 2014 private medical opinion made clear that the cancer was in remission. A subsequent VA examination also made clear the cancer was no longer active. The Veteran himself does not dispute the status of his prostate cancer as in remission, but rather only argues that because it might recur, the provisions of the diagnostic code allow for the continuation of the 100 percent rating. The Veteran's contention is not supported by a plain reading of the diagnostic code, however. 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. 2. Entitlement to an evaluation in excess of 20 percent for residuals of prostate cancer The Veteran contends that he wears diapers under his underwear on a regular basis due to urinary leakage. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In addition, separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," regardless whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected residuals of prostate cancer have been rated under Diagnostic Code 7527. See 38 C.F.R. § 4.115(b). Under Code 7527, prostate gland injuries, infections, hypertrophy and postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. Under 38 C.F.R. § 4.115(a), a voiding dysfunction is rated as urine linkage, frequency, or obstructed voiding. A 10 percent rating is assigned for disability manifested by daytime voiding interval between two and three hours or awakening to void two times per night or marked obstructive symptomatology with any one or combination of the following: post void residuals greater than 150 cc, uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec), recurrent urinary tract infections secondary to obstruction and stricture disease requiring periodic dilatation every 2 to 3 months. A 20 percent rating is assigned for disability manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed less than 2 times per day; or daytime voiding interval between one and two hours, or, awakening to void three to four times per night. A 30 percent rating is assigned for disability manifested by urinary retention requiring intermittent or continuous catheterization. A 40 percent rating is assigned for disability manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; or daytime voiding interval less than one hour; or awakening to void five or more times per night. A maximum 60 percent rating is assigned for disability 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. Under 38 C.F.R. § 4.115(a), a 10 percent rating is assigned for urinary tract infection manifested by long-term therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating is assigned for urinary tract infection with recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) an/or requiring continuous intensive management. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Prior to the Veteran's prostate cancer diagnosis, private treatment records from June 2010 showed burning urination; partial and urgent incontinence; bladder pressure; lower back pain; increased frequency; and urgency. In a private treatment new patient form from August 2010, the physician noted the Veteran's voiding history. The Veteran reported adequate stream of force and full bladder emptying. No incontinence, urgency, frequency, double voiding, or painful urination was noted. In an August 2010 VA examination, the examiner noted the Veteran's urinary symptoms as urgency, frequency voiding 2-3 hours during the day, and nocturia voiding 3 times per night. The VA examiner noted no history of urinary tract stones nor obstructed voiding. In September 2010, the Veteran had a radical prostatectomy as a result of prostate cancer. In a September 2013 Disability Benefits Questionnaire for male reproductive system conditions, the examiner noted that the Veteran has a voiding dysfunction that causes urine leakage as a result of his prostatectomy but does not require absorbent materials or the use of an appliance. The Veteran experiences increased urinary frequency with daytime voiding between 2-3 hours and nighttime awakening to void 3-4 times. Voiding dysfunction does not cause signs or symptoms of obstructed voiding. The VA examiner noted no history of recurrent symptomatic urinary tract or kidney infections. In an April 2018 Disability Benefits Questionnaire for male reproductive system conditions, the VA examiner noted a voiding dysfunction as a result of his prostatectomy but no urine leakage. The examiner noted an increased urinary frequency with a daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times. The examiner noted no other signs or symptoms of obstructed voiding. The VA examiner performed a physical examination noting that the Veteran's penis, testes, and epididymis were normal, and his prostate was abnormal due to removal. Private treatment records from October 2018 discuss the Veteran's symptoms of urinary incontinence. The Veteran reported lower back pain, leakage requiring pads, dysuria, and nocturia (4 times per night). At a September 2021 hearing, the Veteran testified to his current residual impacts after his prostatectomy. The Veteran reported wearing diapers, provided by the VA, inside of his underwear due to leakage and voiding. Typically, the Veterans stated he could use anywhere between 5 to 10 absorbent materials a day. At night, the Veteran stated that he could get up 5 times and sometimes 7-8 times a night. He reported a pain in his groin when he needs to urinate. The Veteran was assigned a 20 percent rating for post prostatectomy with residual voiding dysfunction in July 2014 under Diagnostic Code 7527. Pursuant to this diagnostic code, prostate gland injuries, infections, hypertrophy, or postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. During the appeal period, the Veteran's treatment records are silent for treatment of urinary tract infections. Therefore, the Board will apply the rating criteria for voiding dysfunction. The Board finds the evidence to at least be in relative equipoise that the Veteran had to change absorbent materials with this frequency during the appeal period. A 60 percent rating requires changing absorbent materials more than four times per day. Medical evidence regarding the Veteran's need for absorbent materials differ. VA examiners between September 2010 following the Veteran's prostatectomy and April 2018 note no urine leakage or need for absorbent materials. VA examinations continuously note daytime urinary frequency between 2 to 3 hours and nighttime voiding 3-4 times. However, the Veteran's private treatment records from October 2018 discuss urinary incontinence and leakage requiring the use of pads. The most recent private treatment records from January 2020 are silent regarding the Veteran's voiding dysfunction. These records only state that the Veteran's prostate cancer is still in remission. In adjudicating this claim, the competence and credibility of the Veteran's lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 36869 (2005). The Veteran testified at his Board hearing that his symptomology requires the frequent use of absorbent materials that must be changed 5-10 times per day and up to 8 times per night. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's contentions of worsening symptomology are supported by the private medical treatment records from October 2018 noting the Veteran's need to wear pads for urinary leakage. The Board finds the Veteran's lay statements to be credible regarding his use of absorbent materials for voiding dysfunction. After weighing the evidence of record, the Board finds both the private treatment medical records and VA examination of equal probative value. Since the latest medical records discussing the Veteran's voiding dysfunction date back to October 2018, the Veteran's lay statements from his hearing in September 2021 provide the most accurate depiction of the Veteran's current need for absorbent materials and frequency. The Board finds the Veteran's lay statements to be the most probative evidence of the record regarding his voiding dysfunction. Therefore, a rating of 60 percent for a voiding dysfunction requiring the Veteran to change absorbent materials more than four times per day is warranted. The Board observes that, under DC 7527, schedular ratings in excess of 60 percent are provided for prostate gland disabilities that are predominantly manifested by UTIs with poor renal function. Medical records are silent to UTIs or poor renal functions. An excess rating of 60 percent is not warranted. Finally, the Board notes that the Veteran received a Statement of the Case from the RO regarding his entitlement to a special monthly compensation based on prostate cancer. The Veteran did not appeal that matter. In any event, the Board points out that the special monthly compensation was based on a 100 percent rating for active prostate cancer. Without that 100 percent rating, the Veteran is not in receipt of a single service-connected disability ratable at 100 percent and is no longer entitled to a special monthly compensation as a matter of law. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Clevenger, Gordanna A. 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.