MALIGNANT NEOPLASMS OF THE GENITOURINARY SYSTEM

Summary

The Veteran, an Army veteran who served from May 1969 to November 1970, appeals the proposed reduction of his 100 percent disability rating for prostate cancer status post prostatectomy and associated voiding dysfunction, and the denial of his claim for an increased rating for diabetic nephropathy. The Board found the proposed reduction for prostate cancer proper, noting that the 100 percent rating under Diagnostic Code 7528 has a temporal element and that the Veteran's condition, as evidenced by recent VA examinations and treating urologist records, no longer meets the criteria for a compensable disability rating. The Board found the prostate cancer in remission, with no urine leakage, no obstructed voiding, and moderate to strong urine stream. The Board denied the appeal for diabetic nephropathy, finding it untimely filed, as the Veteran's Notice of Disagreement was submitted more than one year after the initial rating decision. The Board noted that the Veteran's contentions regarding the prostate cancer reduction were not warranted and that the procedural requirements for the reduction were met. The appeal for diabetic nephropathy was denied due to the jurisdictional bar of an untimely filed Notice of Disagreement.

Rationale

Prostate cancer rated under DC 7528 has a temporal element for 100% rating.; Procedural requirements of 38 C.F.R. § 3.105(e) met for reduction.; Evidence shows improvement: cancer in remission, no urine leakage, no obstructed voiding.

Full Decision Text

Citation Nr: A26031480
Decision Date: 04/07/26	Archive Date: 04/07/26

DOCKET NO. 251211-641425
DATE: April 7, 2026

ORDER

1. The claim of entitlement to a disability rating in excess of 60 percent for diabetic nephropathy is denied as the appeal was not timely filed.

2. The proposed rating reduction for prostate cancer status post prostatectomy with associated voiding dysfunction, effective May 1, 2026, is proper. 

FINDING OF FACT

1. A January 2017 rating decision granted service connection for prostate cancer with a 100 percent disability rating effective December 14, 2015, on the basis of active malignancy; the Department of Veterans Affairs (VA) issued an October 2025 rating decision proposing to reduce the Veteran's rating for prostate cancer from 100 percent to 0 percent.

2. The VA issued a February 2026 rating decision which implemented the reduction in the Veteran's rating for prostate cancer status post prostatectomy and associated voiding dysfunction from 100 percent to 0 percent effective May 1, 2026.

3. Service connection for diabetic nephropathy with a 60 percent disability rating was granted by way of a November 15, 2024, rating decision.

4. The December 11, 2025, VA Form 10182 was not filed within one year of the November 15, 2024, rating decision. 

CONCLUSION OF LAW

1. The reduction of the disability rating for prostate cancer status post prostatectomy and associated voiding dysfunction, from 100 percent disabling to 0 percent disabling effective May 1, 2026, is deemed proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 4.1-4.7, 4.115b, Diagnostic Code 7528.

2. The criteria for establishing entitlement to a disability rating in excess of 60 percent for diabetic nephropathy is denied as the appeal was not timely filed.  38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.201, 20.203, 20.204.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably in the United States Army from May 1969 to November 1970.  Among his awards the Veteran received the National Defense Service Medal. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2025 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the December 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the October 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Propriety of the proposed reduction.

The Veteran contends that the proposed reduction of his 100 percent rating to a 0 percent rating for service-connected prostate cancer status post prostatectomy and associated voiding dysfunction effective May 1, 2026, was improper.  For the reasons which follow, the Board finds that the Veteran's contentions are not warranted.

The Veteran's prostate cancer status post prostatectomy and associated voiding dysfunction is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 as a malignant neoplasm of the genitourinary system. Pursuant to Diagnostic Code 7528, a 100 percent evaluation shall be assigned for malignant neoplasms of the genitourinary system while treatment is ongoing. However, following the cessation or surgery, 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
.  For the reasons which follow, the Board finds that the Veteran's contentions are not warranted.

The Veteran's prostate cancer status post prostatectomy and associated voiding dysfunction is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 as a malignant neoplasm of the genitourinary system. Pursuant to Diagnostic Code 7528, a 100 percent evaluation shall be assigned for malignant neoplasms of the genitourinary system while treatment is ongoing. However, following the cessation or surgery, 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 38 C.F.R. § 3.105 (e). If there has been no local reoccurrence or metastasis, then the Veteran's cancer is rated based on residuals. 38 C.F.R. § 4.115b.

Initially, the Board notes that the claim at issue is not a formal reduction under the substantive provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344 because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the AOJ's action was not a "rating reduction" as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). In short, in this case, the Board must only determine if the procedural requirements of 38 C.F.R. § 3.105 (e) were met and if the reduction was warranted by operation of law under Diagnostic Code 7528.

The provisions of 38 C.F.R. § 3.105 (e) set forth procedural guidelines for reducing a disability rating. Procedurally, where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons supporting the proposed reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then, a rating action will be taken to effectuate the reduction, if warranted. 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).

In this case, an October 2025 letter proposing to reduce the rating for prostate cancer status post prostatectomy and associated voiding dysfunction provided the Veteran with notice of the proposed reduction and informed him that he could submit medical or other evidence to show why the reduction should not be made. The letter explained that this evidence could include a statement from a physician who treated or examined the Veteran. The letter also notified the Veteran that he could request a personal hearing to provide testimony on this matter. The letter further informed him that, if he did not request a hearing within 30 days or submit additional evidence within 60 days, the RO would issue a decision based on the evidence of record. In short, this letter provided adequate content notice for the proposed reduction. Furthermore, when the reduction was effectuated in February 2026, it was not effective until May 1, 2026. Thus, the procedural requirements of 38 C.F.R. § 3.105 (e) were met in this case. 

The Board additionally finds that there is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under Diagnostic Code 7528 from May 1, 2026.

The Veteran was granted service connection for prostate cancer effective December 14, 2015, by way of a January 2017 rating decision.  The Veteran was afforded a 100 percent disability rating pursuant to 38 C.F.R. § 4.115b, DC 7528.  The Veteran was provided examinations in compliance with the provisions of the DC in February 2018, November 2018, July 2019, and November 2022.  In reliance upon these examinations the Veteran has continued to be rated at 100 percent disabled for prostate cancer status post prostatectomy and associated voiding dysfunction. 

More recently, the Veteran was afforded a VA examination in July 2023.  The examiner diagnosed the Veteran as suffering from prostate cancer
 for prostate cancer effective December 14, 2015, by way of a January 2017 rating decision.  The Veteran was afforded a 100 percent disability rating pursuant to 38 C.F.R. § 4.115b, DC 7528.  The Veteran was provided examinations in compliance with the provisions of the DC in February 2018, November 2018, July 2019, and November 2022.  In reliance upon these examinations the Veteran has continued to be rated at 100 percent disabled for prostate cancer status post prostatectomy and associated voiding dysfunction. 

More recently, the Veteran was afforded a VA examination in July 2023.  The examiner diagnosed the Veteran as suffering from prostate cancer status post prostatectomy and associated voiding dysfunction and erectile dysfunction.  The examiner indicated that the Veteran's conditions were improved.  The Veteran's voiding dysfunction had improved and the Veteran was prescribed Viagra for sexual activity.  The examiner found that the Veteran did not experience urine leakage, did not require the use of absorbent materials, and did not require the use of an appliance.  The examiner indicated that the Veteran voided between 2 and 3 hours during the day and awoke 2 times per night to void.  The examiner noted that the Veteran underwent a partial prostatectomy in 2021.

The Veteran was afforded a VA examination in March 2024.  The examiner confirmed the diagnoses prostate cancer status post partial prostatectomy and voiding dysfunction and erectile dysfunction.  The examiner found that the Veteran suffered from a voiding dysfunction and urine leakage.  The examiner found that the urine leakage is not severe and does not require the use of absorbent material or an appliance.  The examiner indicated that the Veteran voids every one to two hours during the day and awakens to void 3 to 4 times per night.  The examiner found no evidence of obstructed voiding.  The Board notes that these findings do not align with the findings of the July 2023 and September 2025 VA examinations or those contained in the treating urologist's records outlined below.

The Veteran's treating urologist's record from July 2024 indicates that the Veteran is under surveillance for prostate cancer but recent biopsies have not shown the presence of prostate cancer.  The physician indicated he no longer felt biopsies were needed and he would only perform one if there was a concerning rise in the Veteran's Prostate-Specific Antigen (PSA).  In a February 2024 note the physician addressed the Veteran's voiding problem and indicated that the Veteran had a moderate to strong stream with complete emptying without straining.  The physician found that the Veteran awoke one to two times per night to void.    

The Veteran attended a VA examination in September 2025.  An addendum to this report was also authored in September 2025.  The examiner confirmed the diagnoses prostate cancer status post partial prostatectomy and voiding dysfunction and erectile dysfunction.  The examiner found that the Veteran does not suffer from a renal dysfunction, although the examiner did find evidence of a voiding dysfunction.  The examiner indicated that the Veteran did not suffer from urine leakage and did not require the use of absorbent materials or an appliance.  The examiner found that the Veteran did not suffer from increased urinary frequency and there was no evidence of obstructed voiding.  The examiner acknowledged that the Veteran underwent a partial prostatectomy in 2021.  In the addendum, the examiner indicated that the Veteran's prostate cancer is in remission.

Based on the treatment records from the Veteran's urologist and September 2025 VA examination, the Board finds that the Veteran's prostate cancer status post prostatectomy and associated voiding dysfunction has improved and no longer meets the criteria for a compensable disability rating.  Specifically, the evidence shows that the Veteran's prostate cancer status post partial prostatectomy and voiding dysfunction is in remission, the Veteran does not suffer from urine leakage, there is no evidence of obstructed voiding, the Veteran does not suffer from increased urinary frequency, the force of urine is moderate to strong, and the Veteran completely empties without straining when voiding.

Based on the foregoing, the Board finds that the discontinuance of a 100 percent rating for prostate cancer was proper, and that restoration of a 100 percent rating is not warranted.

2. Timeliness of the December 2025 VA Form 10182.

The Board finds that there is no rating decision which corresponds to the date listed on the December 2025 VA Form 10182.  On this form, the Veteran identifies a rating decision dated September 18, 2025, as the rating decision he wishes to appeal.  There is no rating decision which corresponds to this date.  In order to identify the decision(s
 of urine is moderate to strong, and the Veteran completely empties without straining when voiding.

Based on the foregoing, the Board finds that the discontinuance of a 100 percent rating for prostate cancer was proper, and that restoration of a 100 percent rating is not warranted.

2. Timeliness of the December 2025 VA Form 10182.

The Board finds that there is no rating decision which corresponds to the date listed on the December 2025 VA Form 10182.  On this form, the Veteran identifies a rating decision dated September 18, 2025, as the rating decision he wishes to appeal.  There is no rating decision which corresponds to this date.  In order to identify the decision(s) the Veteran intended to appeal, the Board looks at the issues the Veteran raised on the 10182.  In the case at hand, the issues the Veteran referenced on the 10182 are the proposed rating reduction of the Veteran's disability rating for prostate cancer status post partial prostatectomy and voiding dysfunction and the disability rating awarded for diabetic nephropathy.  The Veteran's appeal to the proposed rating reduction for prostate cancer status post partial prostatectomy and voiding dysfunction has been addressed earlier in this decision.  

However, that portion of the Veteran's 10182 seeking a disability rating in excess of 60 percent for diabetic nephropathy is denied on the grounds that the appeal was not timely filed.  The Board finds that the Veteran was awarded service connection for diabetic nephropathy with a 60 percent disability rating by way of a rating decision dated November 15, 2024.  The Veteran's 10182 was not filed until December 11, 2025, a period more than one year after the rating decision was issued.  Accordingly, the Board finds the Veteran's 10182 untimely filed as it pertains the November 15, 2024, rating decision. Therefore, the Board finds that the weight of the evidence is substantially against this claim.     

Further, the evidence does not demonstrate that the Veteran requested any extension of time to file a NOD; therefore, the provisions of 38 C.F.R. § 3.109(b) (2018) are inapplicable.

The VA is required to read sympathetically a veteran's allegations in all benefits claims and apply all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (requiring the Secretary to give a sympathetic reading to a veteran's filings).  However, an untimely filed NOD is a jurisdictional bar to appellate consideration, and this issue may not be waived.  Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) See also Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction").

In summary, as the Veteran did not file a timely appeal as to the issue of the disability rating assigned for diabetic nephropathy, his appeal must be denied.

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Litts, Norman W. Jr

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.