Citation Nr: 22014154 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 20-21 097 DATE: March 11, 2022 ORDER The discontinuance of the 100 percent rating for prostate cancer, effective December 1, 2018, was proper. Entitlement to a disability rating in excess of 20 percent from December 1, 2018, for residuals of prostate cancer, status-post radical prostatectomy is denied. FINDINGS OF FACT 1. The Veteran was diagnosed with prostate cancer in November 2017 and underwent a robotic radical prostatectomy in January 2018. For the period beginning after that surgery, the Board finds that the evidence in this case does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer. 2. The discontinuance of the 100 percent evaluation for prostate cancer is not a formal rating reduction in this case, as the "reduction" occurred by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528, and the procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed in this case. 3. Since December 1, 2018, the Veteran's prostate cancer residuals have been manifested by stress incontinence, and daily urinary frequency and urine leakage requiring the use of absorbent materials which must be changed once per day, and daytime voiding interval between 1 and 2 hours. CONCLUSIONS OF LAW 1. The criteria for the discontinuance of the 100 percent rating for prostate cancer, effective December 1, 2018, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, Diagnostic Code 7528. 2. The criteria for entitlement to a disability rating in excess of 20 percent from December 1, 2018, for residuals of prostate cancer, status-post radical prostatectomy has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1969 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only those reasons for rejecting evidence favorable to the claimant be addressed). 1. The discontinuance of the 100 percent rating for prostate cancer, effective December 1, 2018, was proper 2. Entitlement to a disability rating in excess of 20 percent from December 1, 2018, for residuals of prostate cancer, status-post radical prostatectomy The Veteran contends that he was diagnosed with prostate cancer, and still has prostate cancer and urinary retention symptoms, and therefore his 20 percent disability for residuals of prostate cancer, status-post radical prostatectomy is incorrect. The Veteran contends that 1.) he never received the July 2018 notification letter regarding proposed reduction; 2.) He has active prostate cancer; 3.) During the day he voids every 45 minutes and changes his pad over 4 times a day; 4.) He is impotent. See November 2018 Notice of Disagreement. The Veteran's representative contends that the Veteran should receive a 40 percent disability rating. See January 2022 IHP. Service connection for prostate cancer was granted in an April 2018 rating decision, and a 100 percent evaluation was assigned, effective November 22, 2017. In July 2018, the RO issued a rating decision proposing to reduce the Veteran's rating for prostate cancer from 100 percent to 0 percent. The Veteran was notified of that decision on July 12, 2018. In September 2018, the RO issued a rating decision effectuating the proposed reduction, reducing the Veteran's prostate cancer rating from 100 percent to 20 percent, effective December 1, 2018. The Veteran was notified of this decision on September 24, 2018. The Veteran appealed the September 2018 discontinuance of a 100 percent disability rating for prostate cancer and indicated his belief that he was entitled to a higher disability rating for his residuals of prostate cancer. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran was granted service connection for his prostate cancer, which was evaluated as 100 percent disabling from November 22, 2017, through December 1, 2018, at which time it was evaluated as 20 percent disabling based on his prostate cancer residuals, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system (i.e., prostate cancer) is assigned a 100 percent evaluation. However, a Note following that Diagnostic Code, explains that following the cessation of surgical, X-ray, antineo-plastic 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 section 3.105(e) of the chapter. If there has been no local reoccurrence or metastasis, the disability is to be rated on its residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. The Veteran was diagnosed with prostate cancer in November 2017 and underwent a robotic radical prostatectomy in January 2018. For the period beginning after that surgery, the Board finds that the evidence in this case does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer. In this case, the Veteran was assigned a 100 percent disability rating for his prostate cancer, effective from November 22, 2017, by way of the April 2018 rating decision. Following the provisions in the Rating Schedule, a VA examination was obtained in June 2018. In a July 2018 rating decision, the RO proposed to reduce the Veteran's prostate cancer disability rating from 100 percent to 20 percent disabling. The Veteran was informed of that proposed reduction and of his rights to a pre-determination hearing and to submit additional evidence in a July 2018 letter. 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, Diagnostic Code 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," as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (where the Court found 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, Diagnostic Code 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, in essence, a staged rating case, but it is not a formal reduction case because of the clear temporal element of Diagnostic Code 7528. The rating reduction in this case was procedural in nature and by operation of law. The Board must only 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 Diagnostic Code 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 Diagnostic Code 7528. Regarding the applicability of the procedural requirements under 38 C.F.R. § 3.105(e) in this case, the Court has held that if the Veteran was receiving no compensation at the time of the reduction, notice under 38 C.F.R. § 3.105(e) was not required. See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). The Court explained that the plain meaning of 38 C.F.R. § 3.105(e) was that such notice is warranted only where there is a reduction in compensation payments currently being made. Id. Similarly, in the precedential opinion VAOPGCPREC 71-91 (Nov. 1991), the General Counsel for VA held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. In this case, the Veteran was in receipt of compensation benefits at the 100 percent rate from November 22, 2017, through December 1, 2018, at which time his compensation benefit was reduced to 20 percent (the disability rating assigned by the RO for the Veteran's prostate cancer residuals). Consequently, the provisions of 38 C.F.R. § 3.105(e) are applicable in the instant case. The Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105 in this case. In the July 2018 rating decision, the RO proposed to reduce the Veteran's 100 percent evaluation to 20 percent. In a July 2018 letter, the Veteran was informed of his rights, including to a predetermination hearing, and that he could submit additional evidence. The Veteran did not respond to this proposal. The Veteran contends that he did not receive this notification. The Court has held that there is a presumption of regularity that the Secretary properly discharged official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant's representative, if any, on the date that the decision is issued. See Woods v. Gober, 14 Vet. App. 214 (2000). The appellant may rebut that presumption by submitting "clear evidence" to the effect that VA's regular mailing practices are not regular or that they were not followed. The burden then shifts to the Secretary to establish that the VA decision was mailed to the claimant. See Ashley v. Derwinski, 2 Vet. App. 307 (1992). Absent evidence that the claimant notified VA of a change of address and absent evidence that any notice sent to the appellant at his or her last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18 (1996). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the RO level, such as in the instant case. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Jones v. West, 12 Vet. App. 98 (1998). If a claimant alleges non-receipt of a VA notice letter, clear evidence to rebut the presumption of regularity "mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). An addressing error is consequential where it "results in an address that does not contain all the necessary address elements" sufficient to enable delivery. Id. at 135; see also Crain v. Principi, 17 Vet. App. 182 (2003); Boyd v. McDonald, 27 Vet. App. 63 (2014). While the VA has the burden of demonstrating that notice was sent to the Veteran's most recent address of record, there is no burden on the VA to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Based on the foregoing, in each critical instance, notice was sent to his most recent address of record. The Board also notes that the Veteran's address has not changed, and there was no returned mail. As a result, the VA has met its burden. The effective date of the reduction, December 1, 2018, was the last day of the month after expiration of the 60-day period from the date of notice of the September 2018 rating action, as set forth in the applicable VA regulations. In light of these facts, the Board finds that the procedure for discontinuing the Veteran's 100 percent evaluation for his prostate cancer was appropriately and adequately completed in this case. See 38 C.F.R. § 3.105(e). Turning to the question as to whether the Veteran meets the criteria for continued evaluation under Diagnostic Code 7528 for the period beginning December 1, 2018, the Board finds that the evidence in this case does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer. Therefore, the discontinuance of the Veteran's 100 percent disability rating for his prostate cancer was proper in this case. In June 2018, the Veteran was afforded a VA examination for prostate cancer. The examiner indicated that the Veteran's prostate cancer was in remission, and he had stress incontinence. The examiner stated that treatment was completed, but the Veteran's status was being carefully watched, as he had radical prostatectomy surgery in February 2018. The Veteran had a PSA of 0 as of April 2018. The Veteran reported voiding dysfunction that requires absorbent material which must be changed less than 2 times per day and increased urination frequency of daytime voiding interval between two and three hours. The Veteran reported erectile dysfunction. The examiner opined that the Veteran's erectile dysfunction is not as likely as not (less than 50 percent probability) attributed to his prostate cancer including residuals. As to the rationale, the examiner explained that the etiology of the erectile dysfunction was "hypertension treatment his erectile dysfunction was present for 3 years prior to [prostate cancer] diagnosis. In February 2020, the Veteran was afforded a VA examination for his prostate cancer. The examiner indicated that the Veteran's prostate cancer was in remission, and he had a diagnosis of stress incontinence. The examiner noted that the Veteran had a PSA .006 in October 2018 and today the Veteran reported he had a PSA performed in January 2020 which was undetectable. The Veteran reported voiding dysfunction. The examiner noted that, the records from the surgeon's office state that he uses 1 pad per day on 10/16/2018 and at my last exam he stated the same usage and now he says he uses more." The Veteran reported daytime voiding intervals between 1 and 2 hours, and nighttime awakening to void 2 times. The examiner noted that the Veteran has erectile dysfunction, but it was present three years prior to the Veteran's diagnosis of prostate cancer and was caused by the medications used for the treatment of hypertension. Finally, the examiner noted that the Veteran "gives conflicting voiding pattern histories and his surgeon's record reveals the use of only 1 pad in his report dated 10/16/2018. He has stress incontinence not complete incontinence." Based on the foregoing evidence, the Board finds that discontinuance of the 100 percent evaluation, effective December 1, 2018, was proper in this case. In this regard, the Veteran has reported that he still has prostate cancer. The Veteran stated that the (received) November 2018 private treatment record demonstrates that he has prostate cancer. The Board notes that the private treatment record states, "They [referring to VA] state he is "cancer free", however, he still has symptoms, and it has only been 10 months since the surgery. See October 2018 treatment record. The Board notes that the private doctor seemed to imply that because it had only been 10 months, it was still possible that the cancer could return. However, that is not the equivalent of saying that it had in fact returned. Significantly, the private doctor concluded with a diagnosis of prostate cancer "Status: Ned." The Board takes judicial notice that that NED is a medical abbreviation that stands for no evidence of disease. The Board further notes that the blood work also indicated that the Veteran had a PSA of less than .006. The examiner noted that the Veteran uses one pad per day and urinates every 45 minutes. The Board notes that at the time the Veteran reported he urinated every 45 minutes, the Veteran was receiving a 100 percent disability rating. The medical evidence of record demonstrates that the Veteran has not experienced any local recurrence or metastasis of his prostate cancer since January 2018, following his radical prostatectomy. Additionally, there is no evidence that the Veteran has continued to receive any surgical, X-ray, or antineoplastic chemotherapy, or that he had any continued active malignancy of his genitourinary system since January 2018. The June 2018 and February 2020 VA examiners explicitly indicated that the Veteran's prostate cancer was in remission. Accordingly, given the lack of recurrence or metastasis of the prostate cancer on or after December 1, 2018, the initial 100 percent rating for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b, Diagnostic Code 7528; Rossiello v. Principi, 3 Vet. App. 430 (1992). Increased rating claim for prostate cancer Turning to the increased evaluation claim for the Veteran's prostate cancer since discontinuance of his 100 percent evaluation beginning December 1, 2018, the Board finds that a 20 percent evaluation, but no higher, is warranted throughout the appeal period. Under Diagnostic Code 7528, the Board is directed to evaluate the Veteran's prostate cancer residuals with erectile dysfunction on the predominance of either renal dysfunction or voiding dysfunction. As noted below, the Veteran does not appear to demonstrate any renal dysfunction as a result of his radical prostatectomy, but rather asserts a predominance of urinary/voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. Regarding urine leakage, a 20 percent evaluation is warranted when the wearing of absorbent materials which must be changed less than 2 times per day is required. A 40 percent is warranted when the wearing of absorbent materials which must be changed 2 to 4 times per day is required. A maximum 60 percent evaluation is warranted when the use of an appliance, or the wearing of absorbent materials which must be changed more than 4 times per day is required. See 38 C.F.R. § 4.115a, Continual Urine Leakage, Post-Surgical Urinary Diversion, Urinary Incontinence, and Stress Incontinence. Regarding urinary frequency, a 10 percent evaluation is warranted with daytime voiding intervals between 2 and 3 hours or awakening to void 2 times per night. A 20 percent evaluation is warranted with daytime voiding intervals between 1 and 2 hours or awakening to void 3 to 4 times per night. A maximum 40 percent evaluation is warranted with daytime voiding intervals of less than an hour or awakening to void 5 or more times per night. See 38 C.F.R. § 4.115a, Urinary Frequency. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. As a preliminary matter, the Board notes that the June 2018 and February 2021 VA examinations have demonstrated that his prostate cancer is in remission. The Veteran maintains that he has experienced urinary problems and residual erectile dysfunction since he underwent a radical prostatectomy in January 2018. With regard to erectile dysfunction, the Board observes that while the June 2018 and February 2020 VA examiners indicated that the Veteran's erectile dysfunction was due to the medications that were used to treat his hypertension, the Veteran is separately service connected for this disability and has not appealed the noncompensable rating assigned. The Veteran is also currently in receipt of special monthly compensation based on loss of use of a creative organ from February 2018. Accordingly, the issue of entitlement to an increased rating for erectile dysfunction is not currently before the Board. Based on the above-cited evidence, the Board finds that a rating higher than 20 percent is not warranted for the Veteran's residuals of prostate cancer based upon his symptoms of stress incontinence, urine leakage, and urinary frequency for the period beginning December 1, 2018. The Board notes that the Veteran reported that he voids every 45 minutes and changes his pads over 4 times per day. See November 2018 Notice of Disagreement. The Board acknowledges that the Veteran's is competent to report symptoms as he observes them, as this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board finds the Veteran's statements are not credible because the reports are inconsistent. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board acknowledges the Veteran and his representative's contention that his private treatment record demonstrates that the Veteran reported that he urinated every 45 minutes and changed his pad once per day. However, at the time of this treatment record the Veteran was receiving a 100 percent disability rating. See October 2018 treatment record. During the June 2018 VA examination, the Veteran reported voiding dysfunction that required absorbent material which must be changed less than 2 times per day and increased urination frequency of daytime voiding interval between two and three hours. During the February 2020 VA examination the Veteran reported voiding dysfunction. The examiner noted that, the records from the surgeon's office state that he uses 1 pad per day on 10/16/2018 and at my last exam he stated the same usage and now he says he uses more." The Veteran reported daytime voiding intervals between 1 and 2 hours, and nighttime awakening to void 2 times. The Board finds based on the Veteran's reports that he most likely has to change his absorbent material one time per day because the Veteran reported this in October 2018 and June 2018. The Board finds that the Veteran most likely voids between 1 and 2 hours because while the Veteran reported he voided every 45 minutes in October 2018, he was receiving a 100 percent rating at that time, and thus is inconsequential. Then during the June 2018 and February 2021 VA examination, the Veteran reported urinating no more than between 1 and 2 hours. The Board does not find the Veteran credible in his reports of voiding every 45 minutes and changing his absorbent material more than 4 times per day subsequent to December 1, 2018, because of the Veteran's inconsistent reports. The Board also acknowledges that the February 2020 VA examiner noted the Veteran's inconsistent statements. The Board acknowledges that Veteran's representative's request for a new examination if the Board determined that a 40 percent disability rating is not warranted to assess the Veteran's current severity of his residuals. However, the Board does not find that a new examination is warranted because the Veteran's February 2020 VA examination was recent, the Board did not find the Veteran's statements credible (as they were inconsistent), and there is no suggestion that the Veteran's condition "began to worsen." The Board acknowledges the Veteran's statements of his condition being worse than what is rated, but the February 2020 VA examination occurred after those statements, and the Board's determination is based off of the inconsistency of the Veteran's statements. Neither the Veteran nor his representative has raised any other issues (beyond the July 2018 notification) with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). In this case, the Board does not find that there is an approximate balance of positive and negative evidence, as the Board does not find the Veteran's statements to be credible, and thus the claim for a disability rating in excess of 20 percent for residuals of prostate cancer, status-post radical prostatectomy is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate 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.