Foster v McDonough: An Appeal Against the Board of Veterans' Appeals

court of appeals for veterans claims

Foster v McDonough: An Appeal Against the Board of Veterans' Appeals

Fred W. Foster recently filed an appeal against the Board of Veterans' Appeals to challenge their decision to lower his disability rating and stop his special monthly compensation.

The Court of Appeals for Veterans Claims has upheld the Board's ruling to terminate the 100% disability rating, arguing that this adjustment does not qualify as a typical reduction in rating.

However, the Court has invalidated the Board's decision to assign a 10% disability rating due to insufficient justification provided.

Furthermore, the Court has referred Foster's eligibility for special monthly compensation back for review. This decision was made because it is closely tied to the accurate determination of his disability rating.

Foster initially submitted a claim for service connection for prostate cancer in December 2013, which was approved with a disability rating of 100%.

In addition, the regional office (RO) granted service connection for erectile dysfunction and awarded special monthly compensation (SMC) based on housebound criteria.

In 2015, the RO maintained the 100% rating but noted a potential improvement in Foster's condition, indicating that the rating would be subject to future review.

In 2017, the RO proposed a reduction in the rating to 10% and termination of SMC, which was implemented in 2018.

The Board of Veterans' Appeals supported the RO's decision, stating that the change was not a typical "rating reduction."

While the Court of Appeals for Veterans Claims affirmed the termination of the 100% rating, it has referred the matters of the 10% rating and SMC back for further consideration.

Insufficient Justification for the 10% Disability Rating

The Board's decision regarding an increased rating for prostate cancer was considered to be outside their jurisdiction. However, they did assign a 10% rating to Foster based on voiding dysfunction. Unfortunately, they concluded that a higher rating wasn't warranted due to doubts about the credibility of his reports on absorbent materials. Foster believes that the Board made an error by not classifying the end of his 100% rating as a reduction, which would have given him the protections of relevant regulations. On the other hand, the Secretary maintains that the Board appropriately discontinued the 100% rating based on the requirements of Diagnostic Code 7528. Ultimately, the Court of Appeals for Veterans Claims has remanded two issues for further review: the 10% rating and the discontinuation of SMC.

Foster's argument centers around the Board's failure to provide sufficient justification for discrediting his statements concerning voiding dysfunction.

The Secretary agrees that a remand is necessary for the 10% rating regarding residuals of prostate cancer.

Foster's Eligibility for Special Monthly Compensation

Both parties unanimously agree that the claim for residuals of prostate cancer is closely linked to the matter of Special Monthly Compensation (SMC), necessitating further examination and evaluation.

As ruled by the Court, the removal of the 100% rating does not fall under the category of a rating reduction. Therefore, the regulations that govern rating reductions do not apply to this particular case.

The Court diligently scrutinizes Diagnostic Code (DC) 7528, which offers precise guidelines for rating prostate cancer and its residuals, exercising thoroughness and attention to detail.

Operating within the framework of DC 7528, the Court meticulously examines the conditions for the continuation of the 100% rating, especially in cases where it expires under specific circumstances.

Throughout the review process, the Court focuses on two crucial aspects presented by both parties: the regulatory provisions concerning rating reductions and the precise interpretation of Rossiello.

After careful consideration, the Court concludes that the discontinuation of the 100% rating under DC 7528 does not qualify as a rating reduction, as it is an integral part of the initial rating assigned to the condition. This determination aligns with the Court's previous ruling in Rossiello and is reinforced by the explicit language of DC 7528.

The Court highlights the importance of the supplemental note accompanying DC 7528, which outlines the specific criteria that must be met before terminating a 100% disability rating for prostate cancer. The Court also references other cases, such as Tatum, Bailey, and Rossiello, which have examined DC 7528 and similar notes found in other Diagnostic Codes.

After a thorough examination of the application of § 3.343(a) to this case, the Court affirms that it does not apply, as the discontinuation of the 100% rating under DC 7528 is not considered a rating reduction.

Contrary to the appellant's argument that this case differs from Breland, the Court determines that both Diagnostic Codes mandate a VA examination six months after the completion of treatment.

While acknowledging the appellant's entitlement to a comprehensive VA examination, the Court emphasizes that the criteria for determining what constitutes an adequate examination may vary depending on the nature of the claim.

Reduction in Rating Proposal and Board's Decision

The Court has determined that the discontinuation of the 100% rating for prostate cancer was done in accordance with the plain language of DC 7528.

In assessing the case, the Court has found that the appellant did not provide evidence to demonstrate any prejudice in the Board's reliance on the July 2017 VA examination.

Court's Affirmation and Remand of the 10% Rating and SMC Issues

While the Court is in favor of the Board's decision to discontinue the 100% rating, they do, however, set aside the 10% rating for residuals of prostate cancer. This matter will be sent back for further examination.

The Court specifically examines the criteria utilized to assign different disability ratings for voiding dysfunction and urinary incontinence.

The Secretary argues that there is a possibility of the appellant receiving a 100% disability rating for residuals of prostate cancer upon review, which would then require the reinstatement of Special Monthly Compensation (SMC).

Agreement on Remand for the 10% Rating and SMC

The Court thoroughly analyzes the issues at hand and reaches a series of conclusions. Firstly, they question the credibility finding made by the Board concerning the appellant's use of absorbent materials, leading them to send the issue of Special Monthly Compensation (SMC) back for further consideration.

Next, the Court overturns the Board's decision on both the 10% disability rating and SMC, citing the mischaracterization of the appeal issue by the Board as the "entitlement to restoration" of the 100% rating and SMC, which the Secretary admits was incorrect. The Court emphasizes the importance of accurately identifying the issues before the Board, supported by references to relevant sections of the record and a previous case.

Regarding the Board's jurisdiction over the 10% rating issue, the appellant initially argues against it but later withdraws this argument. Ultimately, the Court concludes that the Board does possess the authority to address the issue, citing various cases and statutes.

In relation to the discontinuation of the appellant's 100% disability rating, Foster does not challenge the notice provided by the VA, effectively abandoning any appeal related to this matter.

To support the reasonableness of the Board's interpretation of the regulation, the Court cites the case of Rossiello v. Derwinski, which involves a veteran whose 100% rating was extended due to inadequate notice about the discontinuation. The Court also refers to the case of Breland v. Wilkie, which addresses the application of DC 7343 and the requirements for a VA examination.

The Court further explores the applicability of regulations 38 C.F.R. §§ 4.2, 4.10, and 4.13 to the case and cites the case of Shinseki v. Sanders, which discusses the burden of proof in VA cases. They also reference the case of Demery v. Wilkie, which touches upon the issue of jurisdiction.

The appellant does not contest the use of voiding dysfunction as the basis for assigning a rating for residuals of prostate cancer, and the Court cites the case of Caluza v. Brown, which highlights the Board's duty to analyze the credibility and probative value of evidence. Additionally, the Court cites the case of Best v. Principi and the case of Kutscherousky v. West, which both pertain to the application of 38 U.S.C. § 5109B.

Finally, the Court references two more cases: Foster v. McDonough and Parseeya-Picchione v. McDonald.

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