Citation Nr: 22040110 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-23 914 DATE: July 13, 2022 ORDER The discontinuance of the 100 percent evaluation for prostate cancer status post prostatectomy effective October 1, 2016 for was proper. Entitlement to an initial rating in excess of 20 percent for the period from October 1, 2016 to April 18, 2018, and an initial rating in excess of 40 percent beginning April 19, 2018 and thereafter for prostate cancer status post prostatectomy is denied. Entitlement to an initial compensable rating for erectile dysfunction is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is remanded. FINDINGS OF FACT 1. The discontinuance of the 100 percent evaluation for prostate cancer status post prostatectomy effective October 1, 2016 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. The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed in this case. 3. Following October 1, 2016, the evidence of record 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, such that continued application of a 100 percent evaluation for residuals of prostate cancer were appropriate under Diagnostic Code 7528. 4. For the period from October 1, 2016 to April 18, 2018, the Veteran's prostate cancer status post prostatectomy resulted in no more than daytime voiding that required wearing absorbent materials which must be changed less than twice per day. 5. For the period beginning April 19, 2018 and thereafter, the Veteran's prostate cancer status post prostatectomy resulted in no more than voiding dysfunction requiring wearing of absorbent material which must be changed two to four times per day. 6. For the entire period on appeal the Veteran's erectile dysfunction has not been manifested by deformity and at the maximum schedular rating under Diagnostic 7522 under the rating criteria effective from November 14, 2021. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent evaluation for prostate cancer status post prostatectomy effective October 1, 2016 was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, Diagnostic Code 7528. 2. The criteria for entitlement to an initial rating in excess of 20 percent for the period from October 1, 2016 to April 18, 2018, and an initial rating in excess of 40 percent beginning April 19, 2018 and thereafter for prostate cancer status post prostatectomy are not met. 38 U.S.C. § 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.327, 4.1-4.7, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for an initial compensable rating for service-connected erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.327, 4.1-4.7, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1968. In his April 2018 and June 2018 VA form 9 the Veteran requested a Board hearing. However, in subsequent January 2022 correspondence the Veteran requested to cancel his hearing. No subsequent hearing request has been received. As service connection, an initial rating, and an effective date have been assigned for the issues of entitlement to higher initial ratings for prostate cancer status post prostatectomy and erectile dysfunction, the notice requirements of 38 U.S.C. § 5103(a) have been met. For the issues decided below on the merits, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, and affording the claimant VA examinations, VA medical opinions, and a hearing before the Board. 38 U.S.C. §§ 5103, 5103A. There is no objective or subjective evidence indicating that there has been a material change in the severity of the Veteran's service-connected prostate cancer status post prostatectomy and erectile dysfunction since he was last examined in April 2018. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95; 60 Fed. Reg. 43186 (1995). There is no evidence that additional records have yet to be requested. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication on the merits. 38 C.F.R. § 3.159(c). 1. Propriety of the discontinuance of the 100 percent evaluation for prostate cancer. status post prostatectomy 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. The Veteran's prostate cancer was service connected in a January 2014 rating decision, with a 100 percent rating, effective July 15, 2013 (the date of claim). In an October 2014 rating decision, the AOJ proposed a reduction of the Veteran's 100 percent rating for prostate cancer, to 20 percent, the Veteran was notified of his rights to submit additional evidence and request a pre-determination hearing. The Veteran did not request a predetermination hearing. In a July 2016 rating decision, the Veteran's prostate cancer was reduced from a 100 percent rating to a 20 percent rating. The Veteran filed a notice off disagreement in September 2016 and subsequently filed a timely VA Form 9 in June 2018. 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. In the present case, Diagnostic Code (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 an initial rating case, but it is not a formal reduction case because of the temporal element of DC 7528. 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 DC involved contained a temporal element for that 100 percent rating). In short, 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 DC 7528. As discussed further below, the procedural requirements were properly followed, and the "reduction" was by operation of law under DC 7528. The RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). Specifically, the Veteran underwent a VA examination for his prostate cancer in September 2014. In an October 2014 rating decision, the Veteran's 100 percent evaluation for that disability was proposed to be reduced to 20 percent based on that examination. In an October 2014 letter the Veteran was informed of the proposed rating reduction and provided with a copy of the rating decision which informed him of his right to provide additional evidence and or request a predetermination hearing. Within 60 days of the VA letter, the Veteran submitted an October 2014 notice of disagreement. The Veteran did not request a predetermination hearing. Based on the evidence of record, the RO finalized the discontinuance of the Veteran's 100 percent evaluation for prostate cancer residuals in a July 2016 rating decision, reducing the rating to 20 percent effective October 1, 2016. Based on the evidence in this case, 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). The evidence of record further does not demonstrate that continuation of the 100 percent rating for prostate cancer under DC 7528 after October 1, 2016, is warranted. See 38 C.F.R. § 4.7. The Veteran's September 2014 VA examination does not reveal local recurrence or metastasis of the Veteran's malignant neoplasm of the genitourinary system (prostate cancer) after October 1, 2016. Further the examination indicates that the Veteran had a diagnosis of prostate cancer with urinary incontinence, with symptoms beginning in July 2013. The examiner also noted that the Veteran's condition improved with treatment. There is no evidence of record of local recurrence or metastasis of prostate cancer, and no evidence of record the Veteran underwent further surgical procedures, radiation, chemotherapy, or other therapeutic procedures after October 1, 2016. Therefore, in accordance with the provisions of DC 7528, the RO correctly provided the Veteran with a mandatory VA examination in September 2014 and the 100 percent rating was correctly continued for over six months after the 2014 prostate cancer procedures. Therefore, given the lack of recurrence or metastasis of the prostate cancer on or after October 1, 2016, the initial 100 percent disability rating for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b , Diagnostic Code 7528. INCREASED RATING General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. 1. Entitlement to an initial rating in excess of 20 percent for the period from October 1, 2016 to April 18, 2018, and an initial rating in excess of 40 percent beginning April 19, 2018 and thereafter for prostate cancer status post prostatectomy is denied. Following the July 2016 rating decision, the Veteran's prostate cancer was reduced from a 100 percent rating to a 20 percent rating effective October 1, 2016. The Veteran filed a notice of disagreement in September 2016 and subsequently filed a timely VA Form 9 in June 2018. During the pendency of the appeal a June 2018 rating decision increased the Veteran's rating for prostate cancer to 40 percent, effective April 19, 2018. Therefore, the Board will consider entitlement to an initial rating in excess of 20 percent for the period from October 1, 2016 to April 18, 2018, and entitlement to an initial rating in excess of 40 percent beginning April 19, 2018 and thereafter. Entitlement to an initial rating in excess of 20 percent from October 1, 2016 to April 18, 2018 for prostate cancer status post prostatectomy. Prostate cancer is rated unde diagnostic code 7528, which indicates a rating of 100 percent for malignant neoplasms of the genitourinary system. A note to the diagnostic code instructs 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 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. A September 2014 VA examination noted a current diagnosis of prostate cancer with urinary incontinence. The examination noted that the Veteran underwent a prostatectomy in September 2013 and completed radiation therapy in May 2014. The Veteran was noted to have a voiding dysfunction that requires absorbent material that is changed less than twice per day and results in urinary frequency including daytime voiding interval between one and two hours and nighttime awakening to void three to four times. The Veteran's voiding dysfunction did not cause signs or symptoms of obstructed voiding, did not require the use of an appliance, did not result in recurrent symptomatic urinary tract infections. The Veteran was also noted have erectile dysfunction attributable to his prostate cancer. Medical evidence of record does not show any symptoms worse than those noted during the September 2014 VA examination for the period from October 2016 to April 2018. In a subjective statement in October 2014, the Veteran reported that as a result of his prostate cancer he was able to hold his urine for ten to twelve hours but since his prostate has been removed, he cannot even hold his urine for two hours and even than has to wear a pad because of leakage. The Veteran's statement is both competent and credible, as it is consistent with the findings in the September 2014 VA examination. Based on voiding dysfunction that requires absorbent material that is changed less than twice per day, the currently assigned 20 percent rating more closely approximates the severity of the Veteran's voiding dysfunction. The next-higher rating of 40 percent for voiding dysfunction requires wearing of absorbent materials which must be changed two to four times per day and does not require the use of an appliance. Based on the Veteran's additional symptoms of urinary frequency, including daytime voiding interval between one and two hours and nighttime awakening to void three to four times, the currently assigned 20 percent rating more closely approximates the severity of the Veteran's urinary frequency. The next-higher and maximum rating of 40 percent for urinary frequency requires daytime voiding interval less than one hour or awakening to void five or more times per night. In rendering a decision, the Board has considered all applicable rating criteria. Based on the evidence of record, additional separate or increased ratings are not warranted. Entitlement to an initial rating in excess of 20 percent for prostate cancer status post prostatectomy is denied during the appeal period from October 1, 2016 to April 18, 2018. Entitlement to an initial rating in excess of 40 percent beginning April 19, 2018 and thereafter for prostate cancer status post prostatectomy. Beginning April 19, 2018, the Veteran's prostate cancer with urinary incontinence is rated at 40 percent under diagnostic code 7528. The Veteran was afforded a VA examination in April 2018. Subjectively the Veteran reported residual symptoms of urinary frequency, nocturia, incontinence and an intermittent history of hematuria. The Veteran's prostate cancer was noted to be in remission. The examination noted voiding dysfunction that requires absorbent materials which must be changed two to four times per day but did not require use of an appliance. Voiding dysfunction was noted to cause increased urinary frequency with daytime voiding between one and two hours and nighttime awakening three to four times. There was no evidence of obstructive symptoms or urinary tract or kidney infection. The Veteran was noted to have ongoing erectile dysfunction but no renal dysfunction. The evidence of record does not demonstrate any symptoms worse than those noted on the April 2018 VA examination for the period from April 19, 2018 and thereafter. Based on the evidence of record, entitlement to an initial rating in excess of 40 percent is not warranted as there is no evidence that the Veteran's disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day and no evidence of renal dysfunction as the predominant residual. Entitlement to an initial rating in excess of 40 percent for prostate cancer beginning April 19, 2018 and thereafter is denied. 2. Entitlement to an initial compensable rating for erectile dysfunction The Veteran's erectile dysfunction was initially service connected in a January 2014 rating decision, with a noncompensable rating, effective September 19, 2013. The Veteran filed a timely notice of disagreement in October 2014. Following a March 2018 statement of the case, he filed a VA form 9 in April 2018. The Board considers whether an initial compensable rating for erectile dysfunction is warranted at any time since the date of claim on September 19, 2013. The Veteran's erectile dysfunction is rated under diagnostic code 7599-7522. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The Board notes that the rating criteria were amended November 14, 2021. Prior to November 2021, a rating of 20 percent was warranted for erectile dysfunction with penis deformity. Beginning November 14, 2021, and thereafter, a noncompensable rating is the only available rating for erectile dysfunction with or without penile deformity. As the Veteran's claim was pending prior to the amended rating criteria, the Board will consider the Veteran's claim under both the rating criteria prior to November 2021 and the rating criteria after November 2021. The Veteran's January 2014 VA examination for diabetes mellitus notes that the Veteran has a diagnosis of erectile dysfunction. The examiner noted that the Veteran was not able to achieve erection with or without medication. However, the Veteran did not experience retrograde ejaculation. Similar findings were noted during an April 2018 VA examination for prostate cancer. In a November 2014 statement in support of claim the Veteran reported that after getting his prostate removed, he cannot maintain an erection even without medication. Ultimately, while the evidence of record shows that the Veteran suffers from erectile dysfunction, the record does not establish, nor does the Veteran contend, that the Veteran experiences penile deformity or that the Veteran has required the removal of any portion of his penis. Thus, the Veteran is not entitled to a compensable rating under the rating criteria prior to or after November 2021 and is not entitled to a compensable rating under any other applicable diagnostic criteria. Moreover, the Board notes that the AOJ has separately awarded SMC based upon loss of use of a creative organ under 38 U.S.C. § 1114 (k). This compensation contemplates impotence, and may be awarded even if the Veteran can achieve erection and penetration with the use of medication. Based on the evidence of record, entitlement to an initial compensable rating is not warranted at any time during the appeal period, and the claim on appeal is denied. REASONS FOR REMAND Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is remanded. The Veteran has alleged that his diabetes has worsened since his initial disability rating. Specifically, he alleges that he now has to take two medications for his diabetes in addition to monitoring his diet. Based on the Veteran's contentions of worsening symptoms, remand is warranted for a new VA examination to assess the current severity of the Veteran's symptoms. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diabetes mellitus. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the Agency of Original Jurisdiction (AOJ) must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.