Citation Nr: 1016992 Decision Date: 05/06/10 Archive Date: 05/19/10 DOCKET NO. 10-05 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to restoration of a 60 percent disability rating for rheumatic heart disease. 2. Entitlement to restoration of a total disability rating based on individual unemployability due to service-connected disability (TDIU). 3. Entitlement to restoration of entitlement to Dependents' Educational Assistance (DEA) under Title 38, Chapter 35 United States Code. REPRESENTATION Appellant represented by: Clayte Binion, Attorney at Law ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from September 1944 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the RO, in the January 2010 statement of the case, provided a finding that there was clear and unmistakable error (CUE) in the November 9, 2007, rating decision which assigned a 60 percent evaluation for rheumatic heart disease. The Board points out that the RO did not first adjudicate that matter in a rating decision, and that the issue of CUE is not a subissue within those currently before the Board or adjudicated in the July 2009 rating action. In the absence of a rating decision adjudicating whether there was CUE in the November 9, 2007, rating decision, the RO's findings as to that matter in the statement of the case are a nullity, and the Board will not further address the matter. If the RO wishes to pursue the matter of whether there was CUE in the November 9, 2007, rating decision, the Board trusts the RO will ensure such a determination is made in accordance with pertinent regulations, including as to providing the Veteran with notice of the determination. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a March 2005 decision, the Board granted entitlement to a 30 percent evaluation for rheumatic heart disease; the Board denied a higher rating in part based on the absence of congestive heart failure. 2. A November 2007 rating decision granted entitlement to a 60 percent rating for rheumatic heart disease on the basis of evidence showing dyspnea with minimal exertion and at rest, as well as congestive heart failure; the evidence on which the 60 percent rating was based included a medical opinion indicating that the congestive heart failure was not related to rheumatic heart disease. 3. An October 2008 rating decision continued the 60 percent rating assigned the rheumatic heart disease, and granted a TDIU and basic eligibility for DEA benefits; the TDIU was based on the results of a VA examination indicating that the Veteran was unemployable due to cardiac problems. 4. A July 2009 rating decision reduced the evaluation assigned the rheumatic heart disease to 30 percent disabling, and discontinued the awards of TDIU and eligibility for DEA benefits; the reduction and discontinuances were effective October 1, 2009. 5. The evidence of record at the time of the July 2009 rating decision reducing the evaluation for the veteran's rheumatic heart disease to 30 percent failed to demonstrate improvement in the disability. 6. The evidence of record at the time of the July 2009 rating decision discontinuing the TDIU failed to demonstrate that actual employability was established. CONCLUSIONS OF LAW 1. The criteria for restoration of a 60 percent rating for rheumatic heart disease have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.344(c), 4.114, Diagnostic Code 7000 (2009). 2. The criteria for restoration of a TDIU have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.343(c), 4.16 (2009). 3. The criteria for restoration of DEA benefits have been met. 38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3021 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2009), VA has certain duties to notify and assist the veteran in her appeal. Given, however, the favorable actions taken hereinbelow, further discussion explaining how VA complied with those laws is unnecessary. In accordance with 38 C.F.R. § 4.1 and § 4.2 (2009) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected rheumatic heart disease. The Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Briefly, as was noted in the Introduction, the veteran's service ended in September 1945. Service connection for rheumatic heart disease was granted that same month, and was assigned a 60 percent rating. In June 1947 the evaluation assigned the disorder was reduced to 10 percent. In a March 2005 decision, the Board determined that the Veteran was entitled to a 30 percent evaluation for her rheumatic heart disease. The Board explained that the record did not show congestive heart failure, and that although the symptoms such as shortness of breath and chest pain were attributed to nonservice-connected cardiac disorders, a 30 percent evaluation was warranted based on an examiner's estimation of when the Veteran's workload of metabolic equivalents (METs) resulted in symptoms. A March 2005 rating decision implemented the Board's decision. Thereafter, private medical records for November 2006 indicate that the Veteran was recently found to have congestive heart failure. She was then seen at a private medical facility in April 2007 for, inter alia, congestive heart failure. Subsequent VA treatment records for 2007 also document treatment for congestive heart failure. The Veteran attended a VA examination in October 2007, at which time she reported dyspnea on exertion with fatigue and dizziness. Physical examination showed dyspnea with minimal exertion and at rest. After examining the Veteran and reviewing the results of certain diagnostic studies, the examiner diagnosed the Veteran as having rheumatic heart disease, congestive heart failure, and atrial fibrillation. The examiner concluded that the latter two disorders were not related to the service-connected rheumatic heart disease because echocardiograms had shown only mild mitral regurgitation and no mitral stenosis or aortic regurgitation. Based on the above evidence since 2006, the RO in November 2007 increased the evaluation assigned the rheumatic heart disease to 60 percent, effective August 15, 2007. The RO specifically determined that the 60 percent rating was warranted based on the evidence showing more than one episode of acute congestive heart failure, manifested by the symptoms of dyspnea, in the prior year. The Veteran thereafter attended a VA examination in June 2008. She reported that she had retired in 1985. She reported experiencing dyspnea on exertion and indicated a recent hospitalization in April 2008 for congestive heart failure. Physical examination showed that she had dyspnea with minimal exertion, and dyspnea at rest. The examiner diagnosed the Veteran as having rheumatic heart disease, congestive heart failure, and atrial fibrillation. The examiner concluded that due to the dyspnea, the Veteran was unable to do her prior job as a secretary and was presently unemployable. VA treatment records for 2008 continued to document the presence of congestive heart failure in the Veteran. In an October 2008 rating decision, and based on the above VA examination report, the RO continued the 60 percent rating for rheumatic heart disease, granted entitlement to a TDIU, and established basic eligibility to DEA. The RO explained that the TDIU was warranted because the evidence showed the Veteran was unable to work because of service-connected disability. In October 2008, VA's Compensation and Pension Service Systematic Technical Accuracy Review (STAR) program completed a review of the case in response to the October 2008 rating decision. According to the RO, the STAR review (the report of which is not of record) determined that there was conflicting information in the examination findings of record, and directed the RO to obtain a medical opinion. The RO ordered a medical opinion in response. The RO's instructions to the examiner indicated that although the October 2007 VA examiner determined that the Veteran's congestive heart failure and pacemaker requirement were unrelated to rheumatic heart disease, a November 2007 "VA examination" concluded the opposite. (The Board notes that the RO probably meant the November 2007 rating decision, as the claims files do not contain the report of any November 2007 VA examination, the pertinent VA medical center's records do not list any such examination as having been performed, and the November 2007 rating decision itself refers only to an October 2007 VA examination.) The RO requested that the examiner determine if the Veteran's current impairment is due to the service-connected rheumatic heart disease. In an April 2009 opinion, a VA physician reviewed the claims files and stated that the Veteran's congestive heart failure was not related to the rheumatic heart disease. In explanation, the examiner indicated that an echocardiogram had shown only mild mitral regurgitation and no mitral stenosis or aortic regurgitation. The examiner also stated that the atrial fibrillation was not related to rheumatic heart disease. She concluded that the rheumatic heart disease did not affect the Veteran's ability to function in her normal occupational environment and caused no functional limitation. In May 2009, the RO proposed to reduce the evaluation assigned the rheumatic heart disease from 60 percent to 30 percent, and to terminate the awards of TDIU and entitlement to DEA benefits. As to the rheumatic heart disease, the RO explained that the April 2009 opinion demonstrated that the rheumatic heart disease posed no functional limitation, and that there otherwise was no evidence of more than one episode of congestive heart failure in the past year, or workload greater than 3 METs but not greater than 5 METs, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent due to rheumatic heart disease. As for the TDIU, the RO noted that the evidence showed the current disabling cardiac condition consisted of nonservice-connected congestive heart failure and atrial fibrillation, and that reduction of the evaluation for the rheumatic heart disease to 30 percent resulted in the Veteran not meeting the minimum criteria for establishing a TDIU. As for entitlement to DEA benefits, the RO noted that such benefits were based on the receipt of the TDIU. Thereafter received were private medical records for 2009 which showed that the Veteran had cardiomegaly. An echocardiogram showed that her left ventricular ejection fraction was 60 percent. In a July 2009 rating decision, the RO reduced the evaluation assigned the rheumatic heart disease to 30 percent, and discontinued the awards of TDIU and eligibility for DEA benefits. The reduction and discontinuances were effective October 1, 2009. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2009). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2009). Under the Rating Schedule, a 30 percent rating is warranted for rheumatic heart disease where workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram or X-ray. A 60 percent evaluation requires more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.114, Diagnostic Code 7000. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a). A. Rheumatic heart disease The record reflects that the RO has complied with the due process requirements of 38 C.F.R. § 3.105(e) in its reduction of the evaluation for rheumatic heart disease from 60 percent disabling to 30 percent disabling. With respect to whether the evidential requirements for reducing the evaluation have been met, the Board notes that the provisions of 38 C.F.R. § 3.344(a), regarding stabilization of disability ratings, are not for application, since the veteran's 60 percent evaluation had not been in effect for a period of five years or more. The 60 percent evaluation was in effect from August 15, 2007, until the reduction effective October 1, 2009. See 38 C.F.R. § 3.344(c); Brown v. Brown, 5 Vet. App. 413, 418 (1993). The 60 percent rating for rheumatic heart disease was specifically based on the presence of congestive heart failure and severe dyspnea that the RO determined was part and parcel of the service-connected rheumatic heart disease. The Board notes that the RO specifically considered the October 2007 examination report which determined that the congestive heart failure was an unrelated process, but apparently rejected that finding. The Veteran attended another examination in June 2008, at which time her condition was the same as when examined in October 2007; that is, she still had congestive heart failure with severe dyspnea. It was not until the STAR review that the RO obtained not a medical examination, but rather just an opinion by a physician who again indicated that the Veteran's congestive heart failure was unrelated to her service-connected rheumatic heart disease. In order to reduce a disability rating, the evidence must show improvement in the severity of a disorder. Such improvement was not shown by the evidence of record at the time of the July 2009 reduction in the disability rating, and, to the contrary, showed that the Veteran's condition was very much the same in June 2008 as it was in October 2007. The only difference is that the April 2009 physician came to a conclusion at odds with that reached by the November 2007 rating decision as to what elements of the Veteran's cardiac condition were attributable to the service-connected rheumatic heart disease. Importantly, the physician did not make any findings as to whether the rheumatic heart disease or any symptoms actually improved since November 2007. The Board points out that having a physician attempt belatedly to parse out which symptoms are service-connected does not constitute evidence of improvement in a disorder. Rather, at most such evidence goes to whether the November 2007 rating decision was in error in basing the assignment of the rating on the presence of congestive heart failure and dyspnea symptoms. That is a question not before the Board at this time. The Board notes that the RO also determined that improvement had been shown because there was no evidence of workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. As to the former, the RO did not obtain, or even attempt to seek an opinion addressing the Veteran's workload capacity. The mere fact that there is no evidence concerning workload capacity does not imply improvement in the rheumatic heart disease. As to the latter, the Veteran has never demonstrated a left ventricular ejection fraction of 50 percent or less, and the 60 percent evaluation was not based on such a finding. That she still has an ejection fraction greater than 50 percent does not support a determination that her rheumatic heart disease has improved. In sum, the evidence on file at the time of the July 2009 rating decision did not demonstrate that the Veteran's rheumatic heart disease had improved. Accordingly, the Board concludes that restoration of the veteran's 60 percent evaluation is warranted. The Board notes that there is no indication in the current record that the veteran's rheumatic heart disease is more than 60 percent disabling. Nor has the veteran or her representative contended that an evaluation in excess of 60 percent is warranted. B. TDIU The record reflects that the RO has complied with the due process requirements of 38 C.F.R. § 3.105(e) in its discontinuation of the TDIU award. With respect to whether the evidential requirements for terminating the TDIU have been met, the Board notes that caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. 38 C.F.R. § 3.343(c). The record shows that the RO discontinued the TDIU award for two reasons, namely that the April 2009 physician concluded there was no impairment associated with the rheumatic heart disease, and that with the reduction of the rating for rheumatic heart disease the Veteran no longer met the requirements for a TDIU. Given the Board's decision in the prior section, the Veteran does meet the minimum schedular requirements for a TDIU, as her only service-connected disorder is 60 percent disabling. The Board need not address the failure to consider 38 C.F.R. § 4.16(b). As to the April 2009 physician's conclusion, the Board again points out that the physician did not identify any improvement in the rheumatic heart disease, but merely concluded, contrary to the RO's determination in November 2007, that certain elements of the Veteran's cardiac condition were not due to the rheumatic heart disease. The physician indicated that once those referenced elements were parsed out, the rheumatic heart disease did not result in any occupational or functional impairment. To discontinue the award of a TDIU, the pertinent regulation requires that the evidence clearly and convincingly establishes employability. The April 2009 examiner did not address employability. He only addressed the functional impairment occasioned by the rheumatic heart disease, which is not the same thing particularly given that the physician did not purport to establish that the Veteran's rheumatic heart disease had improved in any manner since the June 2008 VA examination. None of the other evidence before the RO at the time of the July 2009 decision even remotely suggested that the Veteran was actually employable. Accordingly, the Board concludes that restoration of the veteran's TDIU is warranted. C. DEA benefits VA law provides that DEA benefits under Chapter 35, Title 38, United States Code, may be paid to dependents of a veteran who meet certain basic eligibility requirements. As pertinent to this appeal, basic eligibility for DEA exists if the veteran has a permanent, total service-connected disability. 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. § 3.807(a), 21.3021. A total disability may be assigned where the veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341 (2009). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The RO discontinued entitlement to DEA benefits on the basis of the discontinuation of the TDIU award. Given that, as explained in the prior section, the TDIU award is being restored, and as there is otherwise no indication that the Veteran no longer meets any of the other criteria for eligibility for DEA benefits, the Board finds that the Veteran is entitled to restoration of basic eligibility for DEA benefits. ORDER The 60 percent rating for rheumatic heart disease is restored, effective the date of the reduction. Entitlement to a TDIU is restored, effective the date of the discontinuation. Entitlement to Dependents' Educational Assistance (DEA) under Title 38, Chapter 35 United States Code is restored, effective the date of the discontinuation. ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs