Citation Nr: 18154132
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 18-45 977
DATE:	November 29, 2018
ORDER
Restoration of the Veteran’s prior 100 percent disability rating for prostate cancer effective December 26, 2015 is granted, subject to the laws and regulations governing the payment of monetary benefits, is granted.
FINDING OF FACT
The reduction of the Veteran’s prostate cancer disability from 100 percent to 20 percent effective August 1, 2018 was improper because the examination on which the reduction was based was inadequate.
CONCLUSION OF LAW
The reduction of the disability rating for the Veteran’s residuals of prostate cancer from 100 percent to 20 percent was not proper. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from July 1966 to November 1966 and from May 1968 to December 1969.
In general, the standard to be applied to a rating reduction decision depends on how long the rating has been in effect.  When a rating has continued at the same rating level for five years or more, the underlying VA examination supporting a reduction must be at least as complete as the VA examination that formed the basis for the original rating, and there must be a finding that the condition at issue is not likely to return to its previous level. 38 C.F.R. § 3.344 (a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995).  A reduction may be made if the evidence indicates that it is reasonably certain that improvement of the underlying injury or condition will be maintained under the “ordinary conditions of life.” 38 C.F.R. § 3.344 (a).  However, 38 C.F.R. § 3.344 (a) and (b) are only strictly applicable to ratings that “have continued for long periods of time at the same level (5 years or more),” and do not apply to conditions that have not yet become stabilized and are likely to improve. § 3.344(c).  
In such cases, reexamination need only show actual, not material improvement for a reduced rating to be appropriate, and other specific regulatory protections of 38 C.F.R. § 3.344 (a) and (b), such as evidence indicating improvement of the underlying condition under the “ordinary conditions of life,” are inapplicable to such ratings.  See id. 
The burden of proof is on VA to justify a reduction in rating.  See Brown v. Brown, 5 Vet. App. 413 (1993).  When reviewing a rating reduction for adequacy the Board must inquire “whether the evidence reflects an actual change in the disability and whether the underlying examination reports are based upon thorough examinations.”  Id. at 421. 
Moreover, if the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld.  See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio).  In Tucker v. Derwinski, the Court observed that when presented with a VA exam where “‘apparently the claims folder was not reviewed by the examiner,’ “the RO “chose to substitute its own opinion for that of the doctor instead of insisting on correction of the deficiency or an adequate examination.”  Id.  This is consistent with the regulatory principles of 38 C.F.R. § 4.1, 4.2, and 4.10.  Under these provisions, “it is essential, both in the case of examination and in the evaluation of disability, that each disability be reviewed in relation to its history”; VA examiners are responsible for providing a “full description of the effects of disability upon the person’s ordinary activity”; and examinations containing insufficient detail should be returned to the examiner as inadequate for rating purposes.  38 C.F.R. § 4.1, 4.2, and 4.10.
In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992).
Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated).  Dofflemyer, supra.  The Veteran need not demonstrate he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO’s reduction was warranted.  See Brown v. Brown, 5 Vet. App. 413 (1993), Kitchens, 7 Vet. App. 320 (1995).
The question of whether a disability has improved involves consideration of the applicable rating criteria.  Diagnostic Code (DC) 7528 provides a 100 percent disability rating for malignant neoplasms of the genitourinary system (such as the Veteran’s prostate cancer).  Subject to the same, the criteria provides that, following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination being performed every six months.  Any change in the assigned disability rating based upon such examinations are to be made subject to the provisions of 38 C.F.R. § 3.105(e). 38 C.F.R. § 4.115b, DC 7528, Note.  DC 7528 instructs if there has been no local reoccurrence or metastasis, the disability is to be rated based upon residuals such as voiding dysfunction or renal dysfunction, whichever is predominant.
Under the criteria for voiding dysfunction, disability requiring the use of absorbent materials which must be changed less than twice a day warrants a 20 percent disability rating.  A 40 percent disability rating is assigned for disabilities marked by the wearing of absorbent materials which must be changed two to four times per day.  A maximum schedular 60 percent disability rating is assigned for disabilities requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.
Here, the Veteran was service connected for his prostate cancer in a July 2016 rating decision and was granted a 100 percent rating with an effective date of December 26, 2015.  A January 2017 rating decision proposed to reduce the Veteran’s 100 percent rating to 10 percent.  An April 2018 rating decision reduced the Veteran’s 100 percent rating from 100 percent to 10 percent, effective August 1, 2018.  Accordingly, because the RO reduced the rating approximately two and a half years after the effective date of the rating, the Board finds that the criteria of 38 C.F.R. § 3.344 (a) and (b) are inapplicable here.
The December 2016 examination upon which the April 2018 rating was based indicated the Veteran’s prostate cancer was in remission.  The Veteran reported voiding dysfunction but did not indicate he suffered from urinary leakage.  As for whether the Veteran’s prostate cancer has demonstrated actual improvement, the December 2016 examiner indicated he did not review the Veteran’s claims file or any other medical records.  This, along with the Veteran’s statements, suggest that the current rating may not fully address the true nature and extent of the current problems. 
Additionally, although the examiner opined the Veteran’s prostate cancer was in remission, the Veteran still reported frequent night time urination and had developed erectile dysfunction.  Lastly, the examiner did not offer full description of the effects of disability upon the Veteran’s ordinary activity.  The examiner only noted the Veteran’s residuals of prostate cancer did not impact the Veteran’s ability to work.
The December 2016 examiner failed to review the Veteran’s file and did not offer any details as to how the Veteran’s condition affected his ordinary activity.  Therefore, the Board finds the examination to be inadequate and finds the April 2018 reduction decision was improper.  Accordingly, the Veteran’s prostate cancer disability rating is restored to its prior 100 percent level.
This finding does not suggest that the Veteran will always receive a 100% rating (the Veteran’s prostate condition is, fortunately, in remission), simply that the current rating was reduced without an adequate opinion as to the nature and extent of the Veteran’s current problem, nothing more. 
 
John J. Crowley
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Snoparsky, Associate Counsel 

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