Citation Nr: 1001972	
Decision Date: 01/12/10    Archive Date: 01/22/10

DOCKET NO.  06-25 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake 
City, Utah


THE ISSUE

The propriety of the reduction from a 60 percent to a 10 
percent disability rating for coronary artery disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The appellant served on active duty from January 1966 to 
November 1969, and from November 1979 to August 31, 1999.  

This matter originally came to the Board of Veterans' Appeals 
(Board) on appeal from a January 2006 rating decision rating 
decision of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Salt Lake City, Utah, which reduced the rating 
for the appellant's service-connected coronary artery disease 
from 60 percent to 10 percent, effective April 1, 2006.  

The appellant appealed the RO's decision and in May 2007, he 
testified at a Board videoconference hearing.  In a November 
2007 decision, the Board denied the appeal, finding that the 
reduction of the disability rating for the appellant's 
coronary artery disease from 60 to 10 percent was proper.  

The appellant appealed the Board's decision to the United 
States Court of Appeals for Veterans Claims (Court).  In a 
September 2009 memorandum decision, the Court reversed the 
Board's decision and remanded the matter to the Board with 
instructions to reinstate the 60 percent disability rating 
for the appellant's coronary artery disease.  


FINDING OF FACT

In a September 2009 Memorandum Decision, the U.S. Court of 
Appeals for Veterans Claims remanded this case to the Board 
with instructions to reinstate the 60 percent disability 
rating assigned for the appellant's service-connected 
coronary artery disease.  




CONCLUSION OF LAW

Restoration of the 60 percent disability rating for the 
appellant's service-connected coronary artery disease from 
April 1, 2006, is warranted.  38 C.F.R. § 3.105 (2009); 
Kitchens v. Brown, 7 Vet. App.320, 325 (1995).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, VA is required to advise a claimant of the 
information and evidence not of record that is necessary to 
substantiate a claim.  See 38 U.S.C.A. § 5103 (West 2002 & 
Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009).  VA also has a 
duty to assist claimants in obtaining evidence needed to 
substantiate a claim, unless no reasonable possibility exists 
that such assistance would aid in substantiating that claim.  
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009).  
In light of the favorable decision below, the Board finds 
that any deficiency in VA's VCAA notice or development 
actions is harmless error.


Analysis

As the Board understands it, the Court's September 2009 
memorandum decision concluded that the Board's November 2007 
decision failed to fully and fairly assess the appellant's 
service-connected coronary artery disease in the context of 
his entire medical history, as required by Schafrath v. 
Derwinski, 1 Vet. App. 589, 596 (1991).  The Court held that 
"[b]ecause the Board failed to conduct such an assessment, 
and 'because this is a reduction case, not an increase case,' 
the Board decision will be reversed and remanded with 
directions to the Board to restore [the appellant's] prior 
60% disability rating."  See September 2009 memorandum 
decision at page 10, citing Kitchens v. Brown, 7 Vet. App. 
320, 325 (1995) (holding that a reduction is void ab initio 
when the Board affirms a reduction of a veteran's disability 
rating without observing the applicable VA regulations).  

Accordingly, the 60 percent rating for the appellant's 
service-connected coronary is restored from April 1, 2006.  


ORDER

Restoration of the 60 percent disability rating for the 
appellant's service-connected coronary artery disease from 
April 1, 2006, is granted, subject to the law and regulations 
governing the payment of monetary benefits.




____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs