Citation Nr: A23036123 Decision Date: 12/15/23 Archive Date: 12/15/23 DOCKET NO. 200303-75154 DATE: December 15, 2023 ORDER Restoration of a 100 percent disability rating for prostate cancer, status post radiation therapy, is denied. During the rating period on appeal, from January 1, 2019, entitlement to a disability rating in excess of 40 percent for service connected prostate cancer residuals, status post radiation therapy, is denied. Special monthly compensation based on loss of use of a creative organ prior to February 11, 2022, is denied. FINDING OF FACT 1. There was no local recurrence or metastasis of the Veteran's service-connected prostate cancer more than six months after the cessation of treatment in November 2016. 2. The Department of Veterans Affairs (VA) provided a mandatory examination and complied with the notice requirements of 38 C.F.R. § 3.105(e) prior to discontinuing the Veteran's 100 percent rating for prostate cancer, status post radiation therapy. 3. For the rating period on appeal from January 1, 2019, the probative evidence under review is persuasively against a finding that the Veteran's prostate cancer residuals manifested in renal dysfunction; or required the use of an appliance or the changing of absorbent material more than four times per day. 4. The Veteran is currently in receipt of special monthly compensation based on loss of use of a creative organ from the February 11, 2022, date of claim for service connection for his now-service connected erectile dysfunction associated with prostate cancer. CONCLUSION OF LAW 1. The discontinuance of the 100 percent rating for prostate cancer, status post radiation therapy, effective January 1, 2019, was proper. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.105, 4.3, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. For the rating period on appeal from January 1, 2019, the criteria for a disability rating in excess of 40 percent for service-connected prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.10, 4.115a, 4.115b, DC 7528. 3. The criteria for special monthly compensation based on loss of use of a creative organ prior to February 11, 2022 are not met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army during the Vietnam Era, from February 1969 to November 1972, including service within the Republic of Vietnam. He was awarded the Bronze Star Medal and Combat Infantryman Badge among other medals, decorations, and badges. We thank him for his service. Pursuant to 38C.F.R. §3.2400(c)(2), following issuance of a Statement of the Case (SOC) or Supplemental SOC (SSOC) dated on or after February 19, 2019, a Veteran with an eligible Legacy appeal may elect to opt-into the modernized system of review known as the Appeals Modernization Act (AMA).In March 2020, following issuance of a February 2020 SOC addressing the issues on appeal, the Veteran timely submitted a VA Form 10182 marking the SOC opt-in provision and electing to provide testimony to a Veterans Law Judge (VLJ). See 38 C.F.R. §§ 20.202(b)(2), 20.302. Therefore, the Board may only consider the evidence of record at the time of the February 2020 SOC, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the February 2020 SOC and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. After opting into the AMA system, the Veteran appeared and testified before a VLJ at a videoconference hearing held in February 2022, and a transcript of the hearing is of record. The Board observes that additional evidence was received within the 90-day evidentiary window. Evidence was added to the claims during a time period following the issuance of the February 21, 2020, SOC. As the Board is limited under the AMA to considering evidence of record at the time of the February 21, 2020, SOC notice or within 90 days following the Board hearing, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Finally, please note this appeal has been advanced on the Board's docket. See 38U.S.C. §7107(a), (b); 38 C.F.R. § 20.902(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Restoration of a 100 percent disability rating for prostate cancer, status post radiation therapy, is denied. A Rating Decision dated July 2017 granted the Veteran service connection for prostate cancer and assigned a 100 percent rating effective July 3, 2017, under 38 C.F.R. § 4.115b, DC 7528. Thereafter, an October 2018 Rating Decision changed the rating for prostate cancer residuals from 100 percent to 40 percent, effective January 1, 2019, and the Veteran timely appealed for a rating in excess of 40 percent. For the reasons explained below, the discontinuance of the 100 percent rating under DC 7528 six months after cessation of treatment is not a "rating reduction" as contemplated by 38 C.F.R. §§ 3.343, 3.344, and it does not require application of those special regulatory procedures associated with rating reductions, apart from notice pursuant to 38 C.F.R. § 3.105(e). See Foster v. McDonough, 34 Vet. App. 338 (2021). The Veteran's 100 percent and 40 percent ratings were assigned under DC 7528 for malignant neoplasms of the genitourinary system, which assigns 100 percent for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate criteria, based on whichever genitourinary dysfunction predominates. See 38 C.F.R. § 4.115b. A Note after DC 7528 provides 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. Id. 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). Id. If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Ordinarily, there are special regulatory requirements contained in 38 C.F.R. §§ 3.344 which VA must observe before implementing a "rating reduction." See 38 C.F.R. §§ 3.343, 3.344. However, the Board finds these provisions do not apply to the present case, as DC 7528 contains a temporal component for continuance of a 100 percent rating for prostate cancer residuals. See38C.F.R. §4.115b. In Foster, the United States Court of Appeals for Veterans Claims (Court) held that the discontinuance of a 100 percent rating under DC 7528 is not a rating reduction and the regulations specifically governing rating reductions, including 38 C.F.R. § 3.343(a), do not apply. 34 Vet. App. at 344. According to the Court, reading the reduction provisions of 38 C.F.R. § 3.343 into DC 7528 would render portions of the regulations redundant and require the Board to consider improvement of prostate cancer under two different standards. Id. at 345-46. The Court reasoned that the plain language of DC 7528 provides clear procedures, including an endpoint for a 100 percent rating. Id. Pursuant to 38 C.F.R. § 3.105(e), disagreements with a reduction in rating are governed by a separate set of notice requirements. When a rating reduction is warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments, a Rating Decision proposing the reduction must be prepared setting forth all of the material facts and reasons. Id. The Veteran must then be notified of the contemplated action and the detailed reasons therefore and given 60 days to present additional evidence showing that compensation should be continued at the present level. Id. The Veteran must also be informed of the right to a predetermination hearing if requested within 30 days. See 38 C.F.R. § 3.105(i)(1). If additional evidence is not received and a predetermination hearing is not requested within the applicable time periods, written notice of the final action, including the reasons for the decision and the supporting evidence, must be issued to the Veteran. See 38C.F.R. §3.105(e), (i). In the present matter, the medical evidence reflects that the Veteran's prostate cancer has remained in remission following radiation therapy, which concluded in November 2016. A VA urology note dated May 2017 indicates the Veteran was doing well and was to return in six months to check symptoms and prostate specific antigen (PSA). An August 2017VA examination addendum opinion notes that, based upon PSA testing, the Veteran's prostate cancer was in remission. As there was no local recurrence or metastasis at the expiration of six months following radiation therapy, the Board finds the evidence under review persuasively supports finding that the discontinuance of the 100 percent rating for prostate cancer, effective January 1, 2019, was proper, and restoration of the prior 100 percent rating is not warranted. See Lynch v. McDonough,21 F.4th776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or the other is the benefit of the doubt doctrine not for application). Finally, as the rating reduction results in a reduction of compensation benefits, VA must comply with the applicable notice requirements. See38C.F.R. §3.105(e). In a September 2017 Notification Letter, the Veteran was informed of the proposed reduction, the type of evidence that should be submitted to prevent the reduction, the 60-day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days. A September 2017 proposed Rating Decision outlined in detail the material facts and the reasons behind the proposed reduction. The Veteran was allowed the 60-day period to submit evidence, and no request for a predetermination hearing was received. After allowing the Veteran the appropriate time periods to submit evidence or request a hearing, VA properly provided written notice in an October 2018 Rating Decision, which changed the rating from 100 percent to 40 percent, effective January 1, 2019. In that Rating Decision, the AOJ notified the Veteran of the final decision, as well as the rationale and evidence supporting it. As VA provided proper notice of the proposed rating and the right to a predetermination hearing, allowed the requisite period of time for the submission of additional evidence, and notified the Veteran of the final decision, VA satisfied the notice requirements for a rating reduction. 2. For the rating period on appeal from January 1, 2019, entitlement to a disability rating in excess of 40 percent for service-connected prostate cancer residuals, status post radiation therapy, is denied. As noted above, the AOJ assigned a 40 percent rating for the Veteran's service-connected prostate cancer residuals, effective January 1, 2019. In the March 2020 VA Form 10182, the Veteran expressed disagreement with the rating assigned for "prostate cancer residuals." Moreover, in Foster the Court held that when the agency of original jurisdiction (AOJ) applies the procedures of DC 7528 to discontinue a 100 percent rating and assigns a rating based on cancer residuals, the Board has jurisdiction over the propriety of the discontinuance as well as any rating based on residuals. 34 Vet. App. at 351. Disability ratings are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by DCs. See 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. See Schafrath v. Derwinski,1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3; Lynch, 21 F.4th776. As noted above, 38 C.F.R. § 4.115b, DC 7528 provides that, if there has been no local reoccurrence or metastasis, then a Veteran's prostate cancer is rated based upon residuals such as voiding dysfunction or renal dysfunction, whichever is the predominant disability. See 38 C.F.R. § 4.115b, DC 7528. Under applicable 38 C.F.R. § 4.115a, the criteria for rating renal dysfunction provide that a 100 percent rating is warranted where there is renal dysfunction requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted where there is renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent rating is warranted where there is renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. Id. The criteria for rating voiding dysfunction require the condition to be rated as urine leakage, frequency, or obstructed voiding. Id. With regard to urine leakage, the regulation provides that requiring the use of an appliance or the wearing of absorbent materials, which must be changed more than 4 times per day, warrants a rating of 60 percent, which is the maximum rating for voiding dysfunction. Id. The Veteran underwent a VA examination in July 2017, at which time the examiner assessed that the Veteran had voiding dysfunction not requiring the use of absorbent material or an appliance and manifesting in a daytime voiding interval of less than an hour and awakening two times at nighttime to void. The VA examiner assessed no other residual conditions or complications associated with the Veteran's prostate cancer or treatment, including no renal dysfunction. As noted above, the August 2017 VA addendum medical opinion clarifies that, based upon PSA testing, the Veteran's prostate cancer was in remission. In November 2018, another VA medical examiner reviewed the claims file and reported that the Veteran's prostate cancer remained in remission. The examiner assessed voiding dysfunction not requiring the use of absorbent material or an appliance, and manifesting in a daytime voiding interval of less than an hour and awakening two times at nighttime to void. The VA examiner assessed no other residual conditions or complications associated with the Veteran's prostate cancer or treatment, including no renal dysfunction. The Board assigns significant probative value to the VA examiners' reports in this matter. Specifically, the July 2017 report is based upon a personal examination of the Veteran, both assessments reflect that the claims file was reviewed, and they contain clear conclusions with supporting data and reasoned medical explanations connecting the two. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the January 2019 NOD, the Veteran competently reported having to urinate "14-16 times daily." During the February 2022 Board hearing, the Veteran testified that he changed absorbent material three times daily. The Board assigns significant probative weight to the Veteran's self-reports regarding these manifestations of his prostate cancer residuals, particularly since they do not conflict with the reports of the VA examiners and they are matters which the Veteran is competent to report, as they are within his lay sensibilities. See Jandreau v. Nicholson,492 F.3d 1372, 1377(Fed. Cir. 2007). The Board notes that the Veteran's former representative pointed out in August 2023 that the Board in July 2022 failed to respond to the Veteran's report of excessive fatigue and blockage from his bladder, and in doing so failed to address whether an increased rating was warranted based on renal dysfunction rather than voiding dysfunction. The Veteran is competent to report that he has fatigue. However, he is not competent to report its cause, and he has other diseases, such as posttraumatic stress disorder rated as 70 percent disabling since June 2013, which could cause it. While he reported in October 2018 that it was due to prostate cancer, this is not competent evidence, as he is not competent to indicate this. See Jandreau. Additionally, while the Veteran reported that he had blockage from his bladder, the examiners reviewed his claims folder and/or CPRS and indicated that he had no renal dysfunction and no obstructive symptoms. Additionally, at the time of a cystoscopy in March 2019, his posterior urethra was not obstructed. The health care providers who made these reports have competence to determine whether there is renal dysfunction, obstruction, or obstructive symptoms, and so based on the probative evidence from them, his fatigue is not from renal disease and no rating based on renal dysfunction is warranted based on the evidence. 38 C.F.R. § 4.14. The Board concludes that the rating criteria for a rating in excess of 40 percent based on renal dysfunction from prostate cancer/residuals from January 1, 2019, are not met. Based upon the foregoing, the Board finds that for the rating period on appeal from January 1, 2019, a disability rating in excess of 40 percent for service-connected prostate cancer residuals is not warranted. Specifically, during the rating period on appeal, the evidence is persuasively against a finding that the Veteran's prostate cancer residuals involve renal dysfunction or require the use of an appliance or the changing of absorbent material more than four times daily and, therefore, the benefit of the doubt doctrine is not applicable. See 38U.S.C. §5107; 38C.F.R. §§ 4.3, 4.115b, DC 7528; Lynch, 21 F.4th 776. Thus, the Veteran's claim for a disability rating in excess of 40 percent for service-connected prostate cancer residuals during the rating period on appeal from January 1, 2019, must be denied. The Board notes that the August 2023 joint motion indicates that the July 2022 Board decision did not provide an adequate statement of reasons or bases for its determination that the appropriate rating period on appeal was from January 1, 2019, through February 21, 2020. We have reviewed the relevant regulations and note that they specify what evidence can be considered, but do not appear to limit the rating period based on the closure of the evidentiary window on the date of notification of the statement of the case, and then its reopening for 90 days following the Board hearing in the case of election of the Board hearing lane. They leave that matter ambiguous. We find that since there is not a clear and specific limitation on the end of the rating period in the regulations, it did not end on February 21, 2020. Accordingly, reasons and bases for the rating period ending on February 21, 2020, are not necessary at this point. The Board notes that the Veteran's August 2023 joint motion indicates that the Board Veterans Law Judge who conducted the Veteran's hearing in February 2022 failed to satisfy his hearing officer duties as it relates to the claims. In particular, during the hearing, the Veterans Law Judge did not explain the discontinuance of the 100 percent rating, how a discontinuance of a 100 percent rating assigned for an active malignancy 6 months after the cessation of treatment differs from a standard rating reduction, or the procedures to challenge the discontinuance; did not interject when the representative during the Veteran's hearing framed this issue as a rating reduction; and did not suggest evidence the Veteran could submit to show that the 100 percent rating should be restored. However, given the very credible evidence already of record, the chances would be unlikely that the Veteran would be able to produce evidence to change the outcome in his favor. Accordingly, a new hearing to correct the required hearing omissions would be a waste of precious judicial resources, would serve no useful purpose, and is not required. See Soyini v. Derwinski, 1 Vet. App. 541 (1991) (the law does not require a useless act). 3. Special monthly compensation based on loss of use of a creative organ prior to February 11, 2019 is denied. In the August 2023 joint motion, the parties agreed that the Board erred in July 2022 when it did not consider and discuss whether the Veteran was entitled to special monthly compensation based on loss of use of a creative organ under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(1). Under 38 C.F.R. § 3.350(a)(1), special monthly compensation may be granted for loss or loss of use of one or more creative organs. The Board notes that in a May 2022 AOJ rating decision issued prior to the August 2023 joint motion, the AOJ granted service connection for erectile dysfunction with an evaluation of 0 percent; and special monthly compensation based on loss of use of a creative organ, both effective from the February 11, 2022, date that the Veteran specifically sought compensation for erectile dysfunction due to prostate cancer radiation treatments. Considering this, the Board finds that an award of special monthly compensation based on loss of use of a creative organ cannot be assigned prior to this. No arguments have been made to the contrary. Ardie A. Bland Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.