Foster: Prostate Cancer Reductions

Foster v. McDonough, Case Number 19-7442, was decided October 20, 2021 and involves a reduction after prostate cancer surgery.

The veteran appealed a reduction from 100% to 10% after prostate cancer went into remission and the discontinuance of SMC. 

Initially, the Court focused on the use of the term reduction in this case, saying:

the semantic difficulty that cuts across this appeal. The central issue we face is whether, when VA changes a claimant's disability rating for prostate cancer under DC 7528 from 100% to some lower rating, that change is a rating reduction entitling a claimant to the special regulatory procedures associated with such reductions (along with judicial interpretations of those regulations). The difficulty is that, of course, when VA changed appellant's disability rating from 100% to 10%, the change was a "reduction" in the colloquial sense. No one can argue otherwise. But, there is a certain awkwardness in explaining the matters at issue in this appeal because of the limitations of the written word. So, it is important to keep in mind that we are not dealing with the colloquial, common-sense meaning of "reduction." Rather, we are concerned with whether the common-sense "reduction" that occurred here was a "rating reduction," a legal concept in veteran's law that obligates VA to utilize the special procedures that apply to such actions.

Id. at *2.

Importantly, DC 7528 provides that after “the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure” a 100% rating “shall continue with a mandatory VA examination at the expiration of six months.”  It then states if there is no reoccurrence, the residuals will be rated voiding or renal dysfunction after section 3.105(e) notice.

The Court found “[i]t is clear from the language of DC 7528 that the discontinuance of appellant's 100% disability rating does not constitute a traditional rating reduction but is instead part of the initial rating assigned for the condition.”  Id. at *9.  After discussing how the decision squares with other case law, the Court states:

“In sum, our holding today builds on the precedential caselaw before it. The common thread that links this caselaw is the plain language of the DCs at issue in those cases. And an adjudicator should simply apply the DC's procedures, including any temporal components that may be present, as written. Here, the note accompanying DC 7528 is clear. The discontinuance of a 100% prostate cancer rating following the procedures set out in that note is not a rating reduction requiring VA to follow the special procedures associated with rating reductions.”

 

Id. at *17.

The Court then turned to the 10% rating and noted a remand was necessary on a reasons and bases error because:

the Board failed to explain why it found appellant's statements that his voiding dysfunction required the use of absorbent materials not credible. The parties agree that the Board's finding that there was no record of incontinence is inaccurate, because various treatment records indicate that appellant had incontinence.  Thus, the Board based its credibility finding on an inaccurate description of the evidence of record. The Court agrees with the parties and accepts the Secretary's concession of error. 

Id. at *18. 

Decision by Judge Allen, and joined by Chief Judge Bartley and Judge Falvey.