Citation Nr: 18154208
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-14 934
DATE:	November 29, 2018
ORDER
PROPER proper.
For the period from July 1, 2015, entitlement to a rating of 60 percent, but no higher, for the residuals of prostate cancer is granted, subject to the laws and regulations governing the award of monetary benefits.
FINDINGS OF FACT
1. In August 2012, the RO granted service connection and assigned a 100 percent rating for prostate cancer, as due to herbicide exposure, effective March 7, 2012.
2. In an April 2013 rating decision, the RO proposed a decrease in the rating from 100 percent to 40 percent; the RO notified the Veteran and his representative of this proposed action in an April 2013 letter.
3. The Veteran was last treated with hormonal injections for his prostate cancer in January 2015.
4. In an April 2015 rating decision, the RO discontinued the 100 percent rating for prostate cancer, and assigned a 40 percent rating for the residuals of prostate cancer, effective July 1, 2015.
5. The Veteran’s residuals of prostate cancer are shown to be manifested by urine leakage requiring the wearing of absorbent materials which must be changed more than 4 times per day for the period from July 1, 2015.
CONCLUSIONS OF LAW
1. The RO’s discontinuance of the 100 percent rating for prostate cancer, effective July 1, 2015, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105 (e), 4.115a, 4.115b, Diagnostic Code (DC) 7528.
2. For the period from July 1, 2015, the criteria for a rating of 60 percent, but no higher, for the residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, DC 7528.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1969 to November 1971.
Historically, by an August 2012 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection and assigned a 100 percent rating for prostate cancer, as due to herbicide exposure, effective March 7, 2012.
This appeal comes before the Board of Veterans’ Appeals (Board) from a rating decision issued in April 2015 by a VA RO.  In that decision, the RO discontinued the 100 percent rating for prostate cancer, and assigned a 40 percent rating for the residuals of prostate cancer, effective July 1, 2015.  The Veteran filed a Notice of Disagreement (NOD) with the assigned 40 percent rating in May 2015.  The RO furnished the Veteran a statement of the case (SOC) in March 2016.  The Veteran filed a Substantive Appeal (VA Form 9) in April 2016 and elected not to appear before the Board for an optional hearing.  
The Board notes that since the issuance of the March 2016 SOC, additional VA treatment records, an April 2018 VA examination report, and a lay statement from the Veteran have been added to the evidentiary record.  Neither the Veteran nor his representative has explicitly waived consideration of this evidence by the AOJ, and the Board has not attempted to secure such a waiver.  However, the Board finds that in light of the favorable action herein, no unfair prejudice to the Veteran will result by adjudicating the Veteran’s claim.
1. Whether the RO properly discontinued the 100 percent rating for prostate cancer, effective July 1, 2015
Initially, the Board notes that a 100 percent rating was assigned under 38 C.F.R. § 4.115b, DC 7528, for prostate cancer status post laparoscopic prostatectomy. The Note following this DC provides that, following cessation of surgery, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory 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). If there has been no local reoccurrence or metastasis, then the Veteran’s cancer is to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b, DC 7528.
The evidence of record shows that the Veteran received no surgery, chemotherapy, or other therapeutic procedure for prostate cancer after his last hormonal injection in January 2015.  See VA treatment records from November 2015.
The provisions of 38 C.F.R. § 3.105 (e) allow 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 giving the Veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 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 the Veteran of the final action expires. 38 C.F.R. § 3.105 (e).
As noted above, the Veteran was notified of the RO’s intent to reduce the 100 percent rating for the service-connected residuals of prostate cancer by letter dated April 29, 2013. Thereafter, he was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. 38 C.F.R. § 105 (e), (i). Final action to reduce the 100 percent rating to 40 percent was taken pursuant to 38 C.F.R. § 3.105 (e) in April 2015. The reduction was made effective July 1, 2015.
Based on a review of this procedural history, it appears that the RO complied with all of 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. Finally, the reduction was made effective no sooner than permitted by current law and regulations (“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 contended that these provisions were not complied with, or that he was receiving any treatment for prostate cancer after January 2015.
Thus, the Board finds that the RO appropriately followed the procedural actions to accomplish the discontinuance of the 100 percent rating, which resulted in the reduction of the Veteran’s benefits. Furthermore, as noted above, as the evidence shows that the Veteran received no surgery, chemotherapy, or other therapeutic procedure for prostate cancer after a hormonal injection in January 2015, and a March 2016 VA examination revealed no active cancer, effective July 1, 2015, the RO appropriately discontinued the 100 percent rating, and rated the Veteran on the basis of the residuals of prostate cancer, as directed by 38 C.F.R. § 4.115b, DC 7528. [Parenthetically, the Board notes that the regulatory provision normally applicable to reductions from 100 percent, and for rating reductions in general, are not applicable where, as here, the reduction is mandated by expiration of a time period set forth in the rating schedule. Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992); 38 C.F.R. §§ 3.343, 3.344.]
2. Entitlement to a higher rating for the residuals of prostate cancer rated 40 percent from July 1, 2015
Having concluded that procedurally and substantively the RO correctly discontinued the 100 percent rating for prostate cancer, the Board turns to the question of whether the assigned 40 percent rating from July 1, 2015, for the Veteran’s residuals of prostate cancer was proper. 
Disability ratings are determined by comparing a Veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), which is based on the average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When 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 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the favor of the Veteran. 38 C.F.R. § 4.3.
As previously noted, DC 7528 provides that if there is no local reoccurrence or metastasis, then the Veteran’s residuals are rated under the criteria for voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 38 C.F.R. § 4.115b, DC 7528.
The ratings for voiding dysfunction and renal dysfunction are found at 38 C.F.R. § 4.115a. 
The evidence reflects that the Veteran has no signs or symptoms of renal dysfunction. See March 2016 and April 2018 VA Examination Reports.  The Veteran’s symptomatology is limited to complaints of urinary incontinence, leakage, and frequency. As such, voiding dysfunction, based on urine leakage and incontinence, is the predominant disability, and therefore, that rating criteria will be considered in determining whether the 40 percent for the service-connected residuals of prostate cancer is proper.
Voiding dysfunction based on urine leakage provides a 20 percent rating continual urine leakage, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials that must be changed less than two times a day. When the disability requires that absorbent materials must be changed two to four times a day, a 40 percent rating is warranted. A maximum 60 percent rating is warranted when the disability requires 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.
For the period beginning July 1, 2015, the Board finds that the Veteran exhibited symptoms that more nearly approximated the criteria for a 60 percent rating.  Here, the record evidence reflects that the Veteran’s voiding dysfunction in April 2018 required absorbent material which must be changed more than 4 times per day.  See April 2018 VA Examination Report.  
(Continued on the next page)
 
The Board, however, finds that a rating in excess of 60 percent is not warranted. 60 percent is the highest rating available for voiding dysfunction. See 38 C.F.R. §§ 4.115a, 4.115b DC 7528. As discussed above, the Veteran has not been found to have any signs or symptoms of renal dysfunction a result of his residuals of prostate cancer. As the Veteran is in receipt of the highest rating available for voiding dysfunction under 38 C.F.R. §§ 4.115a and the evidence does not indicate that the Veteran’s has renal dysfunction due to his prostate cancer, the Board finds that a rating of 60 percent, but no higher, is warranted for the Veteran’s residuals of prostate cancer from July 1, 2015. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Morrad, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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