UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-7442

F RED W. F OSTER , A PPELLANT ,

V

.
D ENIS M C D ONOUGH , S ECRETARY OF V ETERANS A FFAIRS , A PPELLEE

. On Appeal from the Board of Veterans' Appeals
(Argued July 20, 2021 Decided October 20, 2021)
J. Corey Creek , of Bethesda, Maryland, with whom Glenn R. Bergmann , of Bethesda, Maryland, was on the brief, for the appellant.

Brent A. Bowker , of Washington, D.C., with whom William A. Hudson, Jr. , Principal Deputy General Counsel; Mary Ann Flynn , Chief Counsel; and Kenneth A. Walsh , Deputy Chief Counsel, all of Washington, D.C., were on the brief, for the appellee.
Before BARTLEY, Chief Judge , and ALLEN and FALVEY, Judges

.

ALLEN, Judge : Appellant Fred W. Foster served th e Nation honorably in the United States Army from April 1968 to November 1969. 1 In this appeal, which is timely and over which the Court has jurisdiction, 2 he challenges a September 5, 2019, d ecision of the Board of Veterans' Appeals that determined that (1) the reduction of appellant's di sability rating for prostate cancer residuals from 100% to 10%, effective January 1, 2019, and (2) the discontinuance of special monthly compensation (SMC), also effective as of Ja nuary 2019, were both proper. 3 This matter was submitted to a panel of th e Court principally to address the operation of 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528, the DC under which appellant's prostate cancer

1 Record (R.) at 1678.

2 See 38 U.S.C. §§ 7252(a), 7266(a).

3 The Board characterized the issue on ap peal as "entitlement to restoration" of the 100% rating and SMC. At oral argument, the Secretary conceded that this was an imprope r characterization of the issues before the Board. Oral Argument (O.A.) at 35:50-36:28, Foster v. McDonough , U.S. Vet. App. No. 19-7442 (oral argument held July 20, 2021), http://www.uscourts.cavc.gov/oral_arguments_audio.ph p. All too often, the Board incorrectly describes the issues before it when the Board considers reductions in ratings. Although we conclude today that the "reduction" at issue here was not a rating reduction in the legal sense, we remind the Board of the importance of correctly identifying the issues before it.2 and its residuals are rated. As we explain, the Board did not err wh en it affirmed the discontinuance of appellant's 100% disability rating under the plain terms of DC 7528, because such a
discontinuance is not a ra ting reduction in the traditional sense and thus did not require the special procedures for rating reductions. Bu t that is not the end of the matt er. We also conclude, consistent with the Secretary's concession, that the Board fail ed to adequately explain why a 10% disability rating was appropriate for appellant's prostate can cer residuals, so we will remand that matter. And we will also remand the issue of appellant's entitlement to SMC, which both parties agree is inextricably intertwined with the prop er rating of appell ant's residuals. Before we begin our analysis, we should consider the semantic difficulty that cuts across this appeal. The central issue we face is whether, when VA change s 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 regulat ory 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 cer tain 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 th e colloquial, common-sense m eaning of "reduction." Rather, we are concerned with whether the comm on-sense "reduction" that occurred here was a "rating reduction," a lega l concept in veteran's law that ob ligates VA to utilize the special procedures that apply to such actions. Therefore, though we may at times refe r to what happened in this case as a "reduction," keep in mind that the precise issue is whether the action is a reduction in the legal sense, entitling appellant to special pr ocedures. With this prelimi nary matter out of the way, we turn to the facts and then to the resolution of this appeal.

I. FACTS AND PROCEDURAL HISTORY In December 2013, appellant filed a claim seekin g service connection for prostate cancer based on his exposure to Agent Or ange while serving in Vietnam. 4 In September 2014, the regional office (RO) granted service connection for prosta te cancer, assigning a 1 00% disability rating for

4 R. at 1324-26.3 active malignancy under DC 7528. 5 The RO also granted serv ice connection for erectile dysfunction as a residual of pros tate cancer, with a 0% disability rating, and awarded SMC based on housebound criteria and loss of use of a creative organ. 6 In the rating decision, the RO noted a "likelihood of impr ovement" and that the "assig ned evaluation is not cons idered permanent and is subject to a future review examination." 7 In October 2015, appellant underwent a VA revi ew examination, which revealed that his prostate cancer was in remission and he had completed treatment. 8 That same month, the RO continued appellant's 100% disabi lity rating for prostate cancer but again noted a "likelihood of improvement" and that the 100% rating is "not cons idered permanent and is subject to a future
review examination." 9
An October 2016 VA examination revealed that appellant had active cancer, that radiation therapy had been completed in 2014, and that androgen deprivation (hormonal) therapy (ADT)

was current. 10 That same month, the RO continued the 100% rating for prostate cancer and again
informed the veteran of "a like lihood of improvement" an d that the 100% rating "is not considered permanent and is subject to a future review examination." 11 In July 2017, appellant underwent another review examination that again noted his prostate
cancer was in remission and that he had completed treatment in 2015. 12 Based on that examination, the RO proposed to discontinue appellant's 100% prostate cancer disabi lity rating, assign a 10% disability rating based on appellant's voidi ng dysfunction, and end his SMC based on housebound

status. 13 In an October 2018 rating decision, VA proceed ed to implement the 10% rating and to end SMC, both effective in January 2019. 14 Appellant filed a Notice of Disagreement (NOD) in February 2019 and eventually perfe cted his appeal to the Board.

5 R. at 902-16.

6 Id.

7 R. at 907.

8 R. at 887-90.

9 R. at 831.

10 R. at 744-45.

11 R. at 499-500.

12 R. at 460-64.

13 R. at 428-42.

14 R. at 402-27.4 In the September 2019 decision on appeal, the Board noted that pursuant to this Court's
decision in Rossiello v. Principi , 15 DC 7528 contains a "temporal el ement for continuance of a 100[%] rating for prostate cancer residuals," and "the action was not a 'ratin g reduction' as that term is commonly understood." 16 Instead, the Board found the end of the 100% rating was "procedural in nature and by operation of law." 17 The Board found that th e RO had properly carried out the due process requirements pu rsuant to 38 C.F.R. § 3.105(e). 18 The Board also found "no evidentiary basis for continuanc e of the 100[%] rating for pros tate cancer under DC 7528 after January 1, 2019." 19 The Board noted that appellant was no longer receiving surgical, x-ray, antineoplastic chemotherapy, or othe r therapeutic procedures for pros tate cancer, as required for a 100% rating. 20 Additionally, the Board found "no eviden ce of metastatic disease" and that appellant's cancer was in remission. 21 Thus, the Board concluded that the 100% rating had ended more than 6 months after the end of appellant' s treatment and that the end of the rating was therefore proper under DC 7528. And, based on the e nd of appellant's 100% rating for prostate cancer, the Board found that appellant no lo nger met the requirements for SMC based on housebound status because he no longer had a single disability rated 100% disabling. 22 The Board noted that appella nt had filed an NOD "in resp onse to the reduction," which "did not arise from a claim for an increased rating." 23 Thus, the Board concluded its "jurisdiction does not extend to deciding whether an increased rating is warranted for prostate cancer." 24 The Board went on, though, to address whether a ppellant "is properly rated at 10[%]." 25 It determined that 10% was proper based on voiding dysfunction, but that appellant was not entitled to a higher

15 3 Vet.App. 430 (1992).

16 R. at 6.

17 R. at 6-7.

18 R. at 7.

19 R. at 8.

20 Id.

21 Id.

22 R. at 11.

23 R. at 6.

24 Id.

25 R. at 8.5 rating because his reports of using absorbent materials were not credible. 26 The Board's credibility finding was based on what it considered to be inc onsistent statements about the use of absorbent
materials. 27 This appeal ensued.

II. PARTIES' ARGUMENTS Central to most of the parties' argument s is a note accompanying DC 7528, which provides
as follows: Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 [%] shall continue with a mandatory VA examination at the expiration of six m onths. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunc tion or renal dysfunction, whichever is predominant. [28]
Section 3.105(e), referred to in this note, requires that specific notice be afforded to a claimant when a rating reduction or discontinuance occurs. 29 Appellant argues the Board erred in finding th at DC 7528 contains a "temporal element" for continuance of a 100% rating and was, therefor e, not a rating reduction. He contends that the Board improperly relied on Rossiello in this regard because the note to DC 7528 requires notice under § 3.105(e), which was not a part of the DC at issue in Rossiello . Appellant further argues
that DC 7528 also differs from the DC at issue in Rossiello , because DC 7528 requires a claimant to undergo a mandatory examination 6 months afte r treatment ends but do es not require a rating
reduction at that time. Appellant asserts that he was prejudiced by this purported Board error because had the
Board classified the end of his 100% rating for prostate cancer as a rating reduc tion, he would have had the benefit of the VA regulations governing reductions, in particular 38 C.F.R. § 3.343(a), which requires a showing of mate rial improvement under the ordi nary conditions of life for a reduction to be proper. 30 He argues that, under t hose regulations, the Boar d erred by relying on the

26 R. at 10.

27 Id.

28 38 C.F.R. § 4.115b, DC 7528 (2021).

29 38 C.F.R. § 3.105(e) (2021).

30 In his briefs, appellant also argued that § 3.344 applied to his situation. However, at oral argument, he conceded that provision would not apply under any circumstances because his 100% rating had not been in effect for 5 years.6 July 2017 VA medical opinion because the opini on was less full and complete than the examination reports VA used to initially authori ze the 100% disability rating. He contends that because the Board failed to comp ly with the rating-reduction regulat ions, the reduction is void ab
initio and should be reversed. The Secretary counters that the plain langua ge of DC 7528 imposes 4 requirements for discontinuing a 100% disability rating: (1) A claimant's treatment has stopped, (2) VA has provided a mandatory 6-month ex amination, (3) VA has provided § 3.105(e) notice, and (4) if a
claimant has no recurrence or metastasis of his prostate cancer, VA rates residuals as voiding or renal dysfunction. 31 The Secretary contends that VA sa tisfied these requirements and thus correctly discontinued the 100% disability rati ng. The Secretary also argues that the Board properly relied on Rossiello because DC 7528 contains temporal language si milar to the language
in the DC at issue in that case. He asserts that when the 100% prostate cancer rating "ceases to
exist" the elements of DC 7528 are satisfied a nd can be distinguished from a rating reduction. 32 Furthermore, the Secretary contends that § 3.105(e) operates independently of the ratingreduction regulations like § 3.343 and requires notice only as set out in the regulati on. He argues that when VA added the § 3.105(e) notice pr ovisions to the note to DC 7528, VA did not specifically reference the applic ation of other rating-reduction provisions. He also notes the incompatibility of § 3.343 and th e procedures set out in the note in DC 7528. The discontinuance of a 100% disability rating in DC 7528 is based on the length of time afte r cessation of treatment, while § 3.343 applies when a tota l rating is discontinued for r easons other than cessation of treatment. Thus, the operation of DC 7528 relies heavily on consideration of prostate cancer treatment, but § 3.343 precludes cons ideration of treatm ent and instead requires that a reduction in disability rating be based on the material improvement in a condition. With respect to the 10% rating awarded for appellant's residuals of prostate cancer, the appellant argues that the Board failed to provi de adequate reasons or bases for finding his statements about his voiding dys function requiring the use abso rbent materials not credible. 33 The

See O.A. at 6:15-:26.

31 Secretary's Brief (Br.) at 8.

32 Id. at 11.

33 In his opening brief, appellant argued that the Board did not have jurisdiction to address the propriety of his 10% rating. However, at oral argume nt, he withdrew that argument. See O.A. at 22:44-24:20. As we explain below, we independently conclude the Board had jurisdiction to addre ss the propriety of the 10% disability rating for appellant's7 Secretary agrees with appellant and concedes rema nd is warranted with respect to the propriety of the 10% rating for prostate cancer residuals. The parties also agree that the issue of SMC is inextricably intertwi ned with the claim for prostate cancer residuals and should be remanded. According to the Secretar y, it is "hypothetically possible" that appellant could receive a 100% rating for his pros tate cancer residuals on remand, and thus the SMC claim is inextricably intertwined. 34

III. ANALYSIS We will begin our analysis where all regulatory interpre tation should begin, with the regulatory text, that is, with th e text of DC 7528 and it s accompanying note. We hold that for rating prostate cancer and its residuals , the plain language of DC 7528 and its note provides clear procedures, which include an endpoint for th e 100% prostate cancer rating. Thus, the discontinuance of appellant's 100% rating does not constitute a ra ting reduction in the sense in which that phrase is normally used when VA proposes to reduce an established disability rating. Therefore, the regulations speci fically governing rating reductions do not apply. Next, we will address appellant's other argument s related to the discontinuance of his 100% ratin g, as well as both the Secretary's and the Board's reliance on Rossiello . Then, we will turn to the propriety of appellant's 10% rating for residuals of prostate cancer. We accept the parties' concession of Board error in considering appellant's voiding dysfunction. Finally, we will consider appellant's entitlement to SMC, another matter that the parties agree should be remanded. A. Discontinuance of 100% Ra ting for Prostate Cancer 1. Plain Language of DC 7528 Under § 4.115b, DC 7528, a 100% disability rati ng is provided for "malignant neoplasms of the genitourinary system." As we mentioned earlier, a note to this regulation states Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 [%] shall continue with a mandatory VA examination at the expiration of six m onths. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunc tion or renal dysfunction, whichever is predominant. [35]

prostate cancer residuals.

34 Secretary's Br. at 21.

35 38 C.F.R. § 4.115b, DC 7528.8 Section 3.105(e), which is referenced in DC 7528's note, provides, inter a lia, that notice and an opportunity to present additional evidence will be provided "[w]here the reduction in evaluation of a service connected disability . . . is consider ed warranted and the lower evaluation would result
in a reduction or disconti nuance of compensation paymen ts currently being made." 36 Although we may not review the content of the rating schedule, 37 the Court has jurisdiction to interpret "the language in the regulations" related to or contained in the rating schedule. 38 We review the purely legal que stion of the proper interpretation of regulations, including DCs, de

novo. 39 To determine the meaning of a regulation, we look first to "the language of the regulation, the plain meaning of which is deri ved from its text and structure." 40 If the plain me aning of the regulation is clear from its language , then the plain meaning controls , and "that is 't he end of the
matter.'" 41 When we assess the meaning of a regulation, we should not read its words in isolation,
but rather in the context of the regulatory scheme and structure as a whole. 42 Regulations are often dense and difficult to fo llow. But that is not the case here. The plain language of DC 7528 provides step- by-step instructions for how pr ostate cancer and its residuals are to be rated. A 100% rating is warranted for malignant neoplasm s of the genitourinary system. When a claimant's treatment ends, VA is required to provide an examination 6 months later to
assess his condition. Based on the results of that examination, VA will either (1) continue the 100% rating if there is local reoccurrence or metastasis of the prostate cancer, or (2) provide the claimant
with notice of the discontinuanc e of the 100% prostate cancer ra ting, consistent with § 3.105(e). 43 Once this notice has been provided, and based on the results of the mandatory examination, the

36 38 C.F.R. § 3.105(e) (2021).

37 38 U.S.C. § 7252(b); see Wanner v. Principi , 370 F.3d 1124, 1131 (Fed. Cir. 2004); Marcelino v. Shulkin , 29 Vet.App. 155, 157-58 (2018).

38 Smith v. Nicholson , 451 F.3d 1344, 1346-47 (Fed. Cir. 2006); see Wingard v. McDonald , 779 F.3d 1357 (Fed. Cir. 2015); Martinez-Bodon v. Wilkie , 32 Vet.App. 393, 399, 402-04 (2020).

39 Martinez-Bodon , 32 Vet.App. at 399-400.

40 Petitti v. McDonald , 27 Vet.App. 415, 422 (2015); see Good Samaritan Hosp. v. Shalala , 508 U.S. 402 (1993); Goodman v. Shulkin , 870 F.3d 1383, 1386 (Fed. Cir. 2017).

41 Tropf v. Nicholson , 20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner , 513 U.S. 115, 120 (1994)); see also Kisor v. Wilkie , __ U.S. __, __, 139 S. Ct. 2400, 2415 (2019).

42 King v. Shinseki , 26 Vet.App. 484, 488 (2014).

43 Appellant does not challenge whether the notice VA provided of the discontinuance of his 100% disability rating was consistent with § 3.105(e). Thus, he has abandoned any appeal of this argument. See Pederson v. McDonald , 27 Vet.App. 276-281-86 (2015) (en banc).9 100% rating ends, and the claimant's condition w ill be rated based on prostate cancer residuals, that is, based on any voiding or renal dysfunction he may have, whichever is predominant. It is clear from the langua ge of DC 7528 that the discon tinuance of appellant's 100% disability rating does not constitute a traditional rating re duction but is instead part of the initial rating assigned for the co ndition. The note to DC 7528 sets forth, in some sense, a rating package
that describes when a 100% disa bility rating will be assigned, th e circumstances under which that rating may be discontinued based on procedures set out in the note, and assuming there is an end to the 100% disability rating, how residuals will be rated thereafter. When DC 7528 is considered within its regu latory structure, it becomes even more apparent that the discontinuance of a 100% rating under DC 7528 is not a rating reduction. A proper rating reduction under the la nguage of 38 C.F.R. § 3.343, for example, requires a showing of material improvement under the ordinary co nditions of life. However, DC 7528 provides its own measure of improveme nt for prostate cancer, specific ally, cessation of treatment and no
cancer recurrence or metastasis based on a mandatory examinati on. Thus, to read the reduction provisions into DC 7528, as appellant argues, w ould render portions of th e regulations redundant and require the Board to consider improvement of prostate cance r under two different standards. Courts should read a regul ation in a way "'so that effect is gi ven to all its provisions, so that no part will be inoperative or supe rfluous, void or insignif icant, and so that one section will not destroy another unless the provision is th e result of obvious mistake or error.'" 44 To read the ratingreduction regulations in to the language of DC 7528 woul d make the method for measuring improvement under the DC inopera tive or less significant and thus should be avoided. In sum, and to repeat, the plain language of DC 7528 provides when a 100% disability rating is appropriate, what must occur before that rating is discontinued, a nd how VA is to rate a claimant's prostate cancer residuals when the 100% prostate cancer rating is no longer warranted
under the DC. The discontinuance of a 100% ra ting for prostate cancer under DC 7528 does not constitute a rating reduction be cause the plain language of th e DC governs how the 100% rating is to be treated, including when it will no longer apply. After an examination provided 6 months
after treatment has ended finds no local recurrence or metastasis, the claimant is entitled to

44 Roper v. Nicholson , 20 Vet.App. 173, 178 (quoting 2A N ORMAN J. S INGER , S UTHERLAND S TATUTES AND S TATUTORY C ONSTRUCTION § 46:06 (6th ed. 2000)), aff'd , 24 F. App'x 422 (Fed. Cir. 2007); see also Jenson v. Shulkin , 29 Vet.App. 66, 74 (2017).10 disability ratings for a ny voiding or renal dysfuncti on he may have as a resi dual of prostate cancer, but not the 100% pros tate cancer rating. Before we turn to applying the plain language of DC 7528 to the facts of this case, we pause to address two key aspects of the par ties' arguments: The rating-reduction regulatory provisions appellant suggests appl y here and the proper way to read Rossiello . First, we note that appellant has not been entirely pr ecise in identifying the regulatory provisions he believes the Board was required to apply if the change in hi s 100% disability rating was a traditional rating reduction. In his opening brief, appe llant listed a series of regulati ons that he seemed to suggest were implicated by his argum ent that VA action here was a rating reduction: 38 C.F.R. §§ 3.343, 3.344, 4.1, 4.2, 4.10, and 4.13. 45 Certainly, §§ 3.343 and 3.344 apply directly to rating reductions (although, as noted above, appellant agrees that § 3.344, concerning the stabilization of ratings after 5 years, would not apply to his situation even if what oc curred here was a rating reduction). However, the other regulations to which appellant refers are not limited to rating reductions. As we explain below, it may be that how these generally applicable regu lations operate is affected by whether an action is a rating reduction. But un like regulatory provisions specifically focused on rating reductions, these more gene rally applicable provisions apply regardless of whether what occurred here is a rating reduction. Second, as noted above, both the Board and the parties spend a signif icant amount of time discussing the Court's decision in Rossiello . Although the plain language of the DC controls our resolution of this matter, our holding is nevertheless consistent with the Rossiello Court's approach.
In Rossiello , the Court addressed DC 6819, wh ich governs respiratory cancers. 46 DC 6819
contained a note similar to the not e at issue in this ma tter but without an ex amination requirement or a reference to § 3.105(e). 47 The question at issue in that case was generically the same as the
one before us now: whether the cessation of a 100% cancer rating under DC 6819 constituted a

45 See Appellant's Br. at 12-13.

46 3 Vet.App. 430.

47 Id. The note at issue in Rossiello stated the following: "The rating under [DC] 6819 will be continued for 2 years following the cessation of surgical, X-ray, antineoplastic chem otherapy or other therapeutic procedure. At this point, if there has been no local recurrence or metastases, the ratin g will be made on residuals." 38 C.F.R. § 4.97, DC 6819 (1991). The Court notes that although the DC at that tim e did not contain an examination requirement or refer to § 3.105(e), in Rossiello the veteran's 100% rating continued beyond the 2-year period because he had received inadequate notice about the discontinuance, and remand would permit a proper examination of his condition. 3 Vet.App. at 432-33.11 rating reduction? The Court held the cessation of the 100% rating was not a rating reduction. Relying on what it termed a "t emporal component," sp ecifically the 2-year period following the
end of treatment before reassess ment, the Court held that the appellant's 100% rating "ceased to exist by operation of the note." 48 The Court noted that although "the net effect of DC 6819 may be a lower percentage rating after two years, it is not a reduction in the rating for a singular condition;
rather it is the result of an award of separate successive ratings for different conditions." 49 Thus, Rosiello did what we do today–interpret th e language of a no te to a DC. And
Rosiello 's reference to a "tem poral component" in the DC at issue there 50 is an apt description for DC 7528, which also contains a temporal component–a manda tory examination conducted 6 months after treatment ends, plus the notice pe riod required by § 3.105(e). VA must apply these time periods and a court mu st consider them when addressing neoplasm DCs. Similarly, Rossiello 's statement that the 100% respirator y cancer rating "ceas ed to exist by operation of the note" 51 means that the Court interpreted the note there to provide a mechanism by which a rating is reduced under DC 6819. We do exactly the same thing today with the note to DC 7528. But saying something happens by operation of la w is not quite as dram atic as the parties make it out to be in application. After all, every time a court states what a regulation means, a court establishes what the law requires in operation. That is not remarkable; it is what courts do. In short, our decision today and the Court's Rossiello decision rest comfortably together. Both interpret a neoplasm DC that provides a mechanism to address how a rating will be assessed. Moreover, our decision today (and in Rossiello, for that matter) is entirely consistent with every decision that has considered DC 7528 a nd other DCs accompanied by notes similar to the note accompanying DC 7528. For example, in Tatum v. Shinseki , this Court held that the notice requirements of DC 7528 did not apply to retro actively awarded staged ratings, but only to "a
reduction or discontinuance of compensation payments currently being made." 52 In its decision, the Court explained the operation of DC 7528 much as we do today, engaging in the same type of regulatory interpretation as we do today, but addressing a question different than the one before

48 Rossiello , 3 Vet.App. at 433.

49 Id. at 432.

50 Id. at 432-33.

51 Id. at 433.

52 24 Vet.App. 139, 142 (2010).12 us. 53 The Court noted the use of the words "sha ll" and "mandatory" in DC 7528 "removed from
the decisionmaker the discretion to reduce or ot herwise change a 100% ra ting during the [6]-month period following treatment for malignant neoplasms, and until a medical exa mination report supports such a change." 54 With respect to § 3.105(e), the Court held that DC 7528 clearly predicates a reduction on compliance with it s notice provisions, which are mandatory, when a rating has already been assigned and VA will discontinue the rating. 55 And that too is consistent
with what we hold. More recently, our Court addressed DC 7528 in Bailey v. Wilkie , holding that DC 7528 provides a single evaluation for re siduals of prostate cancer, based only on voiding or renal dysfunction, whichever is predo minant, and does not include ot her residuals, which must be evaluated separately. 56 The Court held that "the conditional sentence at the end of the Note to DC 7528 is clear and unambiguous" in pres enting only two evaluation options. 57 Thus, consistent with Tatum and Bailey , we rely on the plain language meaning of DC 7528 in holding that its language mandates certain requirements (§ 3.105(e) notice and a VA examination) before a 100% disability rating fo r prostate cancer can be discontinued and a rating based on voiding or renal dysfunction residuals can be assigned. We add to this caselaw to hold
that the discontinuance is not a traditional rating reduction but is a component of the rating package by which the initial 100% prostate cancer rating is assigned. As in Tatum and Bailey , "the meaning and scope of DC 7528 is clear from its text and structure" on this point as well. 58 Finally, in Breland v. Wilkie , this Court recently addressed DC 7343, which governs tongue cancer ratings and includes a note similar to the note accompanying DC 7528. 59 The Court held that the note did not apply retro actively such that a 100% rating continued until an examination was conducted long after the 6-month period passed. 60 As we have done today, the Breland Court

53 Id. at 142.

54 Id.

55 Id. at 144.

56 33 Vet.App. 188, 191 (2021).

57 Id. at 195.

58 Id. at 196.

59 Breland v. Wilkie , 32 Vet.App. 360 (2020).

60 Id. at 362.13 based its interpretation on the plain language of the DC. The Court explained the operation of the
DC as follows: Thus, we read DC 7343 to require the fo llowing when the rating is retroactively awarded: (1) VA may assign a noncompens able rating for malignant neoplasms when the cancer is inactive and treatment has ceased (i.e., the veteran remains service connected fo r that cancer)—this noncompensab le period for cancer itself will often coincide with the rating period for cancer residuals; (2) these retrospective discrete ratings are st aged ratings; and (3) notice and a VA examination 6 months after cessation of treatment is only required where current compensation would be reduc ed, which is not what occurs when assigning a retroactive staged rating. [61]

While Breland addressed the application of § 3.343(a), the Court held that § 3.343(a) did not apply
to DC 7343 because Breland involved a retroactive award of benefits, which precluded the application of § 3.343(a). Thus, the Court did not directly speak to the question before us now. Again, our decision today is consistent with the holding in Breland because in both matters the operation of the DCs dictate the action to be taken and the length of time the 100% rating remains in place subject to acti ons VA must undertake. Appellant argues that his case differs from
Breland , given the different language of the notes acco mpanying the DCs. 62 He contends that though DC 7343 at issue in Breland requires a mandatory discontinuanc e of benefits after a certain amount of time passes, DC 7528–a t issue here–requires only a mandatory examination and does not require VA to determine the appropriate rating at that time. However, this is a distinction without a difference. For prosp ective cases, to determine whethe r a 100% cancer rating continues
because the cancer has recurred or metastasized, both DCs require a VA examination 6 months after treatment ends, and if th e cancer has not recurred or meta stasized, both DCs require VA to
obtain information to rate residuals. 63 And this is consistent with VA's purpose for amending the notes accompanying the DCs to add the examination and § 3.105(e) requirements, which was so the cancer ratings would reflect actual medical findings and vete rans would have more contempor aneous notice of any proposed

61 Id. at 369.

62 DC 7343 provides, in part "[s]ix months after discontin uance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e)." 38 C.F.R. § 4.114, DC 7343.

63 See Breland , 32 Vet.App. at 366.14 action. 64 Thus, our holding follows lo gically from the reasoning in Breland , and the history of the DCs makes clear why they would be similarly re ad. The 100% rating for pr ostate cancer under DC 7528 ends within a time period laid out in th e DC–specifically, the rating ends when an
examination is conducted at least 6 months afte r treatment has ended a nd once a claimant is provided with notice according to § 3.105(e). If there is no local recurrence or metastasis, the prostate cancer rating decreases to 0% and a claimant is provide d a rating for either voiding or renal dysfunction. In sum, our holding today builds on the preceden tial caselaw before it. The common thread that links this caselaw is the pl ain 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 ra ting reduction requiring VA to follow the special procedures as sociated with rating reductions. 2. Application to the Facts Having established that the discontinuance of a 100% disability rating for prostate cancer
under DC 7528 does not constitute a rating reduction, we easily conc lude that the Board did not err in the portion of its decision concerning that issue. Appellant argues that the Board should have considered whether the July 2017 VA examin ation complied with ge neral rating-reduction provisions in § 3.343. However, because this case does not involve a rating reduction in the sense that regulation addresses, the Boar d was not required to apply it. At oral argument and in his briefing, 65 appellant specifically raises the application of 38 C.F.R. § 4.1, which provides in part that "[i]t is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history." 66 He argues that regardless of whether the discontinuance of his 100% disability rating under DC 7528 constitutes a rating reduction, he is still entitled to an adequate VA exam ination under the general regulatory requirements. He cites Brown v. Brown , which found that § 4.1, in addition to §§ 4.2 and 4.13,

64 See 59 Fed. Reg. 2523, 2525-26 (1994) (amending the note accompanying DC 7528); 65 Fed. Reg. 48,205, 48,206 (2000) (providing that the change to the note accompanying DC 7343 would pr ovide criteria similar to those used under other DCs, including DC 7528).

65 O.A. at 6:35-8:00; see also Appellant's Br. at 12-13.

66 38 C.F.R. § 4.1 (2021).15 apply to rating reduction cases, "a s with all VA rating decisions." 67 Thus, appellant argues that the Board was required to provide an adequate exam ination, no matter how the discontinuance of his 100% rating is classified. Appellant's argument as to these general regulato ry provisions is a bit of a red herring. The Court wholeheartedly agrees that when VA provid es a medical examinati on, it must make sure that examination is adequate. 68 That is always the case. However, the standard for what constitutes an adequate examination changes in some respect depending on the t ype of claim at issue. Stated another way, to be adequate, an examination mu st answer the question before the Board, whether that is the question of what disability rati ng to assign, whether service connection can be established, or whether a reduction is proper. He re, appellant argues that the proper question is whether the July 2017 VA examination is adequate to address a rating reduction. This question brings in § 3.343 and other rating-reduction regulati ons. But as we have established, that is not the correct question because there is no ra ting reduction at issue in this case. Rather, the right question is whether the Ju ly 2017 VA examination is adequate for the
Board to determine whether discontinuance of the 100% prostate cance r rating was proper under DC 7528. Appellant's main argument about the examination is made in the context of a rating reduction, which, again, is not at issue here. 69 To the extent appellant challenges the ade quacy of the July 2017 examination to support the discontinuance of his 100% prostate cancer rating, we can discern no prejudice. Specifically, the parties debate when appellant's ADT ended and whether VA acted prem aturely in July 2017 in proposing to discontinue his 100% prostate cancer rati ng. Appellant contends that the July 2017
VA examiner failed to consider the October 2016 examination's notatio n of current hormonal therapy, which means that the Ju ly 2017 examiner's finding that cancer treatment ended in 2015 was inadequate. 70 The Secretary counters that there is no evidence of hormonal therapy taking

67 Brown v. Brown , 5 Vet.App. 413, 420 (1993).

68 Barr v. Nicholson , 21 Vet.App. 303, 311 (2007).

69 Similar reasoning applies to the other, generally applicable , regulations appellant cites: 38 C.F.R. §§ 4.2, 4.10, and 4.13. These regulations apply regardless of whether what occurred here was a rating reduction. And appellant makes no argument—at least one that is not dependent on the discontinuance of his 100% disability rating constituting a rating reduction—that VA did not apply those provisions correctly.

70 R. at 745.16 place after September 2016, which still contradicts the July 2017 examiner's finding that treatment
ended in 2015. The question of when appellant 's treatment ended is impor tant because DC 7528 requires that an examination, here the July 2017 examination, be scheduled 6 months after the end of treatment. Appellant's treatment records show that his ADT is a 6-month treatment and that he
underwent his last round of ADT in September 2016. 71 This means that his last round of ADT in September 2016 lasted for 6 m onths, ending in March 2017. According to DC 7528, VA was required to provide him an examination 6 months after the cessation of treatment, which would have been in September 2017. However, VA provi ded this examination in July 2017–2 months earlier than the DC requires. Although there appears to be so me questions about the end of appellant's ADT and the July
2017 VA examiner's conclusions about the end of treatment, appellant stil l bears the burden to show prejudice here. 72 He fails to carry that burden becau se VA did not discontinue appellant's 100% prostate cancer ra ting until January 2019, far beyond 6 mont hs after any of the dates the parties propose as his last day of treatment. Therefore, we conclude that any error in this regard
was harmless. To summarize, appellant's arguments related to the discontinuance of his 100% disability rating under DC 7528 all turn on establishing th at that discontinuan ce constitutes a rating reduction. Because we hold that it does not, appellant 's other arguments must fail. Therefore, we
find no basis to reverse the Board's decision as void ab initio. To the extent that he challenges the date of that discontinuance, he fails to demonstrate prejudice in th e Board's reliance on the July 2017 VA examination. Therefore, we will affirm the Board's finding that the discontinuance of a 100% rating for prostate cancer was proper u nder the plain language of DC 7528 and its accompanying note. B. 10% Disability Rating for Prostate Cancer Residuals As noted above, appellant initially argued th at the Board did not have jurisdiction to consider the propriety of his 10% disability rating for residuals of prostate cancer. However, at

71 R. at 518, 245 (showing ADT in September 2016 but not in March 2017 due to suicidal ideation).

72 See Shinseki v. Sanders , 556 U.S. 396, 409 (2009); Hilkert v. West , 12 Vet.App. 145, 151 (1999), aff'd , 232 F.3d 908 (Fed. Cir. 2000).17 oral argument, he withdrew this argument. 73 Nevertheless, the Court has "an independent obligation to ensure it has jurisdiction to act." 74 We conclude that the propriety of the 10% disability rating for residuals was properly befo re the Board. As we explained above, DC 7528 and its accompanying note establish a pr ocedure that sets a 100% prosta te cancer rating, describes how that rating will be reevaluated 6 months after treatment ends, and, should the required medical
examination establish that the 100% prostate cancer rating is no longer warranted, how VA is to rate any residuals. So, the Board had jurisdiction to assess all aspects of this rating process, including the assignment of a disa bility rating for appellant's residua ls. In sum, we agree with the parties that the issue of the propriety of the 10% disability rating was before the Board and, therefore, is appropr iately before us. With jurisdiction established, we turn to the propriety of the 10% disability rating for appellant's prostate cancer residuals. Appellant was assigned a 10% disabi lity rating pursuant to 38 C.F.R. § 4.115a, which provides for varying de grees of voiding dysfunc tion including urinary incontinence and frequency. 75 A 10% rating is warranted for da ytime voiding interval between 2 and 3 hours or awakening to void 2 times per night. 76 A 20% rating is warranted for daytime voiding interval between 1 and 2 hours or awakening to vo id 3 to 4 tim es per night. 77 A 40% rating is warranted for daytime voiding in terval less than 1 hour or awak ening to void 5 or more times per night. 78 Additionally, with respect to urinary inc ontinence, a 20% rating is required for the wearing of absorbent materials th at must be changed le ss than 2 times per day; a 40% rating is warranted for changing absorbent materials 2 to 4 times per day; and a 60% rating is warranted if the claimant requires the use of an appliance or changes absorbent material more than 4 times per day. 79

73 See O.A. at 22:44-24:20.

74 Demery v. Wilkie , 30 Vet.App. 430, 434 (2019) (per curiam order); see also Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94-95 (1998).

75 Appellant does not challenge the use of voiding, as oppos ed to renal, dysfunction as the basis to assign a rating for residuals of prostate cancer in his case.

76 38 C.F.R. § 4.115a (2021).

77 Id.

78 Id.

79 Id.18 Here, the Board noted appellant's statements that he used abso rbent materials, but the Board found these statements not credible because they were supposedly inconsistent with the July 2017 VA examination report and VA treatment records that did not show incontinence. 80 Instead, the Board found appellant had urinary fre quency commensurate with a 10% rating. 81 Appellant argues, and the Secr etary agrees, that the Board failed to explain why it found appellant's statements that hi s voiding dysfunction required the us e of absorbent materials not credible. The parties agree that the Board's findi ng that there was no record of incontinence is inaccurate, because various treatment record s indicate that appellant had incontinence. 82 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 with respect to the Board's credibility finding. On remand, the Board must discuss the evidence of incontinence in conjunction with appellant's st atements about his use of absorbent materials. 83
Because the Court is remandi ng this matter to the Board fo r readjudication, we need not address any remaining arguments an d issues raised by appellant, and appellant can present them
to the Board. 84 On remand, appellant may submit addi tional evidence and argument and has 90 days to do so from the date of VA's postremand notice. 85 The Board must consider any such additional evidence or argument submitted. 86 The Board must also proceed expeditiously. 87
C. Entitlement to SMC In his brief, the Secretary asserts that it is "hypothetically possible" appellant could receive a 100% disability rating for his prostate cancer residuals on rema nd, warranting the reinstatement

80 R. at 10.

81 R. at 9.

82 See R. at 153 (Aug. 2018 record noting medication for bladder spasms), 245 (Jan. 2018 record noting incontinence), and 335 (May 2017 record noting urinary incontinence in last 24 months).

83 See Caluza v. Brown , 7 Vet.App.498, 506 (1995) (holding that the Board must analyze the credibility and proactive value of the material evidence, account for the evidence it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant), aff'd per curiam , 78 F.3d 604 (Fed. Cir. 1996) (table).

84 See Best v. Principi , 15 Vet.App. 18, 20 (2001).

85 Kutscherousky v. West , 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O'Rourke , 30 Vet.App. 92 (2018).

86 Kay v. Principi , 16 Vet.App. 529, 534 (2002).

87 38 U.S.C. §§ 5109B, 7112.19 of SMC. 88 As we have explained, "where a decision on one issue would have a 'significant impact' upon another and that impact in turn 'could render any review by this Cour t of the issue [on the other claim] meaningless and a wa ste of judicial resources' th e two claims are inextricably
intertwined." 89 Given the Secretary's position and the poten tial impact of the Board's decision on rating appellant's prostate cancer residuals on remand, we will remand the SMC issue as well. Appellant's rights on remand as to SMC are the same as those that apply to the readjudication of his 10% disability rati ng as discussed above.

IV. CONCLUSION After consideration of the parties' briefs, oral arguments, the reco rd on appeal, and the governing law, the Court AFFIRMS that part of the September 5, 2019, Boar d decision that found the discontinuance of a 100% disability rating for prostate cancer proper. We SET ASIDE the Board's decision as to the propriety of the 10% disa bility rating for residuals of prostate cancer and
entitlement to SMC and REMAND those matters for further proceedings consistent with this
decision.

88 Secretary's Br. at 21.

89 Henderson v. West , 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski , 1 Vet.App. 180, 1873 (1991)); see also Parseeya-Picchione v. McDonald , 28 Vet.App. 171, 177 (2016).