KIDNEY NEOPLASM OF MALIGNANT

Summary

The Veteran, who served in the United States Marine Corps from January 1971 to January 1973, appeals the reduction of his disability rating for left renal cell carcinoma. The Veteran was initially granted service connection for this condition with a 100 percent rating in November 2017. However, in a May 2020 rating decision, the Department of Veterans Affairs (VA) reduced the evaluation to 0 percent, effective August 1, 2020. The Veteran contested this reduction, arguing his condition had not improved. The Board of Veterans' Appeals reviewed the procedural history, noting the Veteran's continuous appeals through the Supplemental Claim and Board Appeal processes. The Board found that the VA examination conducted in May 2018, which formed the basis for the reduction, was inadequate. Specifically, the examiner's opinion regarding the etiology of the Veteran's voiding dysfunction was based solely on the Veteran's statement about prostate enlargement, without supporting medical evidence or analysis. The Board concluded that the reduction was improper because it relied on this inadequate examination. Consequently, the Board granted a restoration of the 100 percent rating for left renal cell carcinoma, effective August 1, 2020.

Rationale

Reduction based on inadequate VA examination; Examiner's opinion lacked medical evidence and analysis; Restoration of 100 percent rating is warranted

Full Decision Text

Citation Nr: A26040631
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 210809-177636
DATE: April 30, 2026

ORDER

Entitlement to a restoration of the 100 percent rating for left renal cell carcinoma, status-post heminephrectomy, is granted, effective August 1, 2020.  

FINDING OF FACT

The Department of Veterans Affairs (VA) examination relied on to reduce the Veteran's disability rating for his service-connected left renal cell carcinoma disability from 100 percent to 0 percent disabling is not adequate for VA purposes.  

CONCLUSION OF LAW

The criteria for a restoration of the 100 percent rating for service-connected left renal cell carcinoma disability have been met, effective from August 1, 2020.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344.  

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REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matters

The Veteran had honorable active-duty service with the United States Marine Corps from January 1971 to January 1973.  

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA).  

By way of history, in a November 2017 rating decision, a VA Regional Office (RO) granted entitlement to service connection for left renal cell carcinoma and assigned an initial rating of 100 percent, effective July 21, 2017.  

In a May 2018 rating decision, the RO proposed to reduce the 100 percent rating to 20 percent.  The Veteran was notified of this proposal.  

Then, in an August 2019 rating decision, upon re-evaluation of the evidence of record, the RO proposed to reduce the 100 percent rating to 0 percent.  The Veteran was notified of this proposal.  

In a May 2020 rating decision, the RO decreased the evaluation for service-connected left renal cell carcinoma to 0 percent, effective August 1, 2020.  

Thereafter, in a May 2020 statement, the Veteran requested that his benefits compensation not be changed, as his service-connected left renal cell carcinoma had not improved.  See May 2020 VA Form 21-4138.  

Then, in September 2020, the Veteran submitted VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the May 2020 rating decision.  

In a February 2021 HLR decision, the RO denied an evaluation greater than 0 percent for service-connected left renal cell carcinoma.  

Then, in March 2021, the Veteran submitted VA Form 20-0995 (Decision Review Request: Supplemental Claim), appealing the reduction of his service-connected left renal cell carcinoma from 100 percent to 0 percent disabling.  

In a June 2021 Supplemental Claim rating decision, the RO continued the 0 percent rating.  

In August 2021, the Veteran filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)).  The Veteran requested the hearing lane, indicating that he wanted a Board hearing and the opportunity to submit any additional evidence in support of the appeal at the hearing or within 90 days after the hearing.  

In December 2024, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing has been associated with the Veteran's electronic claims file.  

Therefore, the Board will consider the evidence of record at the time of the June 2021 rating decision on appeal, as well as any evidence submitted by the Veteran, or the representative, within 90 days following the December 2024 Board hearing.  38C.F.R. §20.302(b).  

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, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included following this decision.  

Based on the procedural history discussed above, the Veteran has continuously contested the reduction of the evaluation for his service-connected left renal cell carcinoma from 100 percent to 0 percent disabling.  Thus, the Board has characterized the issue accordingly.  


 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, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included following this decision.  

Based on the procedural history discussed above, the Veteran has continuously contested the reduction of the evaluation for his service-connected left renal cell carcinoma from 100 percent to 0 percent disabling.  Thus, the Board has characterized the issue accordingly.  

Rating Reduction

Entitlement to a restoration of the 100 percent rating for left renal cell carcinoma, status-post heminephrectomy, is granted, effective August 1, 2020.  

As previously indicated, an August 2019 rating decision proposed to reduce the Veteran's evaluation for his service-connected left renal cell carcinoma from 100 percent to 0 percent disabling.  The proposal was based on the results of a May 2018 VA examination.  

The regulation regarding the evidence that will warrant a reduction in rating for service-connected disabilities divides disabilities into two types.  38 U.S.C. § 501; 38 C.F.R. § 3.344(c).  Disabilities with ratings that have continued for long periods of time (5 or more years) and those that have not become stabilized and are likely to improve (those that have been rated the same percentage disabling for less than 5 years).  Id.  Disabilities that have been continuously rated the same level of disabling for at least 5 years cannot be reduced without complying with the evidentiary considerations set forth in paragraphs (a) and (b) of the section governing reductions.  Id.  In contrast, disabilities that have not been stabilized and continually rated the same percentage disabling for at least the preceding 5 years will be reduced in rating where reexaminations disclose improvement in the disability.  Id.  

Here, the Veteran's 100 percent disability rating for his service-connected left renal cell carcinoma disability began in 2017, less than 5 years prior to the reduction in this case.  Consequently, it was not error to reduce the Veteran's disability rating based on the May 2018 examination which showed improvement.  38 U.S.C. § 501; 38 C.F.R. § 3.344(c).  As indicated in the August 2019 rating decision, the reduction was ultimately based on the May 2018 VA examiner's determination that the Veteran's urinary issues were not due to his heminephrectomy, but instead, due to prostate issues.  However, the May 2018 VA examination in question was not adequate for VA rating purposes in that the examiner's opinion regarding the etiology of the Veteran's voiding dysfunction was based on the Veteran's statement that his voiding dysfunction was due to his prostate enlargement.  The examiner stated that there was no medical evidence at that time to confirm the Veteran's statement.  Thus, the examiner arrived at his conclusion that the Veteran's voiding dysfunction was due to prostate issues followed by a recitation of the Veteran's statement.  Therefore, the examiner's opinion was not supported by an analysis of any medical evidence.  

While the final sentence of § 3.344(c) does not expressly state that an examination demonstrating improvement must be adequate for VA purposes, the Board finds that, where the examination in question is a VA examination, it is required to be adequate.  Consequently, the Board finds that the reduction in this case was not warranted because it was based on an inadequate VA examination.  Accordingly, the Board finds that the reduction in rating from 100 percent to 0 percent for service-connected left renal cell carcinoma disability was improper and the 100 percent rating is restored.  

 

 

Christopher Seppanen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Y. MacDonald, Counsel

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.