Citation Nr: 22015232 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-54 077 DATE: March 16, 2022 ORDER The discontinuance of the 100 percent evaluation for service-connected prostate cancer residuals effective January 1, 2016, was proper; restoration of the 100 percent rating or a compensable rating from that date is denied. FINDING OF FACT The Veteran completed radiation therapy for his prostate cancer in 2011, which was noted to be in remission in 2013 with no evidence of recurrence or metastasis since that time; from January 1, 2106, the persuasive evidence of record does not indicate any compensable prostate cancer residuals. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent evaluation for prostate cancer residuals effective January 1, 2016, 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 compensable rating for prostate cancer residuals from January 1, 2016, to include the criteria for restoration of the 100 percent evaluation, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.16, 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1969 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision reducing the Veteran's rating for prostate cancer from 100 percent disabling to noncompensable, effective January 1, 2016. The discontinuance of the 100 percent evaluation for service-connected prostate cancer residuals effective January 1, 2016, was proper; restoration of the 100 percent rating or a compensable rating from that date is denied. The Veteran disagrees with the reduction in his prostate cancer rating from 100 percent disabling to 0 percent disabling, effective January 1, 2016. He reports that he has erectile dysfunction from his prostate cancer and that he takes medication for urinary problems. See November 2013 Veteran's Statement; July 2017 Notice of Disagreement; October 2017 Substantive Appeal. For background, in an April 2012 rating decision, the Veteran was awarded a 100 percent evaluation for his prostate cancer under DC 7528 for malignant neoplasms of the genitourinary system. According to DC 7528, 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, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. The Board notes that 38 C.F.R. § 3.105(e) discusses reduction in evaluation compensation. Where the reduction in evaluation of a service-connected disability or employability status 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section (regarding predetermination hearings), if additional evidence is not received within that period, 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 beneficiary of the final rating action expires. Initially, the Board considered whether the claim would be more appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, these provisions are not applicable 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 Regional Office's action was not a "rating reduction" as the term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992); Foster v. McDonough, No. 19-7442, 2021 U.S. App. Vet. Claims LEXIS 1848. The rating reduction in this case was procedural in nature and by operation of law. Therefore, the Board must 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 these requirements have been met. Here, VA provided notice of the proposed prostate cancer rating reduction in a letter dated November 12, 2013, that was sent to the Veteran's last known address of record and was not returned as undeliverable. In fact, the Veteran's November 25, 2013, statement shows receipt of the proposed reduction. The Veteran did not request a predetermination hearing. Then, the Regional Office issued the October 2015 decision that actually decreased the prostate cancer rating to 0 percent, effective January 1, 2016. The Board finds the reduction was proper and completed after all necessary procedural steps. As noted above, residuals of prostate cancer must be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Voiding dysfunction includes three subcategories: urine leakage, urinary frequency, and obstructed voiding. Regarding urine leakage, a 20 percent evaluation requires the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent evaluation requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent evaluation requires 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. 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 40 percent evaluation is warranted with daytime voiding intervals of less than an hour; or awakening to void 5 or more times per night. 38 C.F.R. § 4.115a. Finally, for obstructed voiding, a noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 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); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/second); (3) recurrent urinary tract infections secondary to obstruction; and/or (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. Turning to the evidence, the Veteran completed radiation therapy in 2011. The Veteran then underwent VA contract examination in September 2013. The Board notes that the September 2013 examination was conducted at least six months after the 100 percent rating's effective date for the prostate cancer disability. See Note to DC 7528. The September 2013 examiner noted that the Veteran had prostate cancer, that he had completed treatment, and that he was now in remission. The examiner noted that the Veteran did not have a voiding dysfunction or a history of recurrent symptomatic urinary tract infections or retrograde ejaculation. The examiner noted erectile dysfunction attributable to the Veteran's prostate cancer. VA treatment records from June 2013 to July 2016 show that the Veteran is taking Tamsulosin, and that he has nocturia 0-1 times per night, no strain to start voiding, good force of stream, no intermittence of stream, bladder usually feels empty when done, no frequency, no blood in urine, and no burning with urination. See June 2013, May 2014, July 2015, and July 2016 VA Treatment Records. The Veteran submitted statements indicating that he has severe erectile dysfunction and that he has urinary problems and takes Tamsulosin for the urinary problems. The Board finds the evidence is sufficient to decide the claim. The Veteran underwent VA contract examination in September 2013. VA treatment records before and after the September 2013 examination show that the Veteran's symptoms have remained consistent. Although the Veteran's representative requested a new examination in the December 2020 brief, there are no suggestions of worsening in the file sufficient to warrant a new examination. The Veteran has not reported symptoms not contemplated by the September 2013 examination and treatment records following the September 2013 examination do not show worsening. The Board acknowledges that the last examination was conducted several years ago. However, since there is no suggestion of worsening, the Board finds that remand for a new examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (holding that the mere passage of time, without evidence of worsening, does not require a new examination). Viewing the evidence as a whole, the evidence provides a persuasive basis for the reduction of the 100 percent rating for prostate cancer residuals, effective January 1, 2016. The Regional Office decreased the rating, after an appropriate time period, as provided by the Note to DC 7528 (if there has been no local reoccurrence or metastasis, the prostate cancer should be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant). The September 2013 examiner indicated the Veteran had completed treatment in 2011 and was in remission. The VA treatment records support this finding. See March 2011 VA Treatment Record. Viewing the lay and medical evidence as a whole, the Veteran does not meet the criteria for a compensable rating under the voiding dysfunction or renal dysfunction criteria. The September 2013 examination report shows the Veteran has no history of kidney infections (or renal dysfunction) and no voiding dysfunction. VA treatment records are in accord. While the Veteran reported taking medication for urinary problems, and VA treatment records confirm this treatment, the Veteran has not reported symptoms of urine leakage, obstructed voiding, or urinary frequency. The evidence as a whole does not show urine leakage. The evidence does not show obstructed voiding (including hesitancy, slow or weak stream, or decreased force of stream) but rather VA treatment records note the Veteran has no strain to start voiding, good force of stream, and no intermittence of stream. As to urinary frequency, the treatment records note no frequency and nocturia 0-1 times per night. In order to warrant a 10 percent rating for urinary frequency, the evidence must show awakening to void 2 times per night. Therefore, the evidence is persuasively against a finding that the Veteran has voiding dysfunction symptoms which would warrant a compensable rating. The Board finds that the Veteran's disability rating has been appropriately reduced to noncompensable under the rating criteria. While the Veteran has reported erectile dysfunction, and the medical evidence shows erectile dysfunction due to prostate cancer, the Veteran is already compensated for his erectile dysfunction. The Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(k) for loss of use of a creative organ. Therefore, as the evidence is persuasively against a finding that the Veteran's prostate cancer has reoccurred or metastasized, the rating reduction from 100 percent, effective January 1, 2016, was proper. The reduction was in accordance with the procedural requirements of 38 C.F.R. § 3.105(e) and by operation of law under DC 7528. Furthermore, the evidence persuasively weighs against a finding that the Veteran has prostate cancer residuals warranting a compensable rating from January 1, 2016. The Board notes that the Veteran's symptomatology is contemplated by the rating schedule. While a claimant is generally entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence, there is no such doubt to resolve in the Veteran's favor here. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). The evidence persuasively weighs against the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell, 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.