Citation Nr: 1306261	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  09-22 685	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an evaluation in excess of 30 percent for arteriosclerotic heart disease, to include restoration of a 60 percent evaluation.

2.  Entitlement to an evaluation in excess of 10 percent for carotid artery stenosis and hypoplastic left vertebral artery.

3.  Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

R. Kessel, Counsel


INTRODUCTION

The Veteran had active military service from August 1950 to April 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In May 2012, the Board denied entitlement to an evaluation in excess of 20 percent for diabetes mellitus and remanded the remaining claims for additional notification to the Veteran.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.9000(c) (2012).

The decision below addresses whether restoration of a 60 percent rating is warranted for arteriosclerotic heart disease.  The remaining claims on appeal are the subjects of the remand that follows the Board's decision.


FINDING OF FACT

A comparison of the evidence upon which a 60 percent disability rating was awarded with the evidence reviewed in connection with the rating reduction to 30 percent does not reflect improvement in the Veteran's service-connected arteriosclerotic heart disease.


CONCLUSION OF LAW

The 60 percent disability rating for arteriosclerotic heart disease was not properly reduced to 30 percent.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 4.104, Diagnostic Code 7005 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 C.F.R. § 3.105(e) (2012). 

In this case, the Veteran disagrees with an October 2007 rating decision that reduced the rating for his service-connected arteriosclerotic heart disease from 60 percent disabling to 30 percent disabling effective January 1, 2008.  He contends that symptoms associated with his disability have not improved and that the reduction to a 30 percent rating from a 60 percent rating was not warranted. 

A copy of a rating decision proposing to reduce the Veteran's arteriosclerotic heart disease from 60 percent disabling to 30 percent disabling was sent to the Veteran in August 2007.  A letter sent with the rating decision informed the Veteran that he would be afforded 60 days for the presentation of additional evidence to show that compensation payments should be continued at the 60 percent level and that he could request a predetermination hearing.  In response, the Veteran submitted a statement in September 2007, which indicates that he did not believe the rating should be reduced.  A hearing was not requested at that time.  Thus, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105.  As such, the RO's reduction of the Veteran's arteriosclerotic heart disease was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. 

The Board notes that the 60 percent rating for arteriosclerotic heart disease was in effect since July 13, 2004.  Because the rating was in effect less than five years, the provisions of 38 C.F.R. § 3.344 pertaining to stabilized ratings are not applicable.  See 38 C.F.R. § 3.344(c) (2012) (reexaminations disclosing improvement in disabilities that have not become stabilized will warrant reduction in rating).

The Veteran's disability is evaluated under Diagnostic Code 7005 for "arteriosclerotic heart disease (coronary artery disease)."  Under that diagnostic code, a 30 percent evaluation is warranted where there is a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or where there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  A 60 percent evaluation is warranted where there is more than one episode of acute congestive heart failure in the past year; or where there is a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  38 C.F.R. § 4.104, Diagnostic Code 7005 (2012).  One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.  38 C.F.R. § 4.104, Note 2.

The primary basis for the 60 percent rating for the Veteran's arteriosclerotic heart disease was a September 2004 VA examination report.  Reported symptoms included dyspnea on exertion, fatigue with some dizziness, and a significant history of syncope.  There was no history of congestive heart failure or coronary bypass surgery.  The Veteran was taking medication to control his symptoms.  Physical examination was normal, but a chest X-ray from four years earlier revealed borderline cardiomegaly.  Additionally, a VA echocardiogram (ECHO) from December 2003 showed a left ventricular ejection fraction of 45 to 50 percent.  There was also trivial mitral and tricuspid regurgitation.  There was no pericardial effusion, but there was mild aortic insufficiency, mild dilation of the aortic root, and mild left atrium enlargement.  A July 2003 electrocardiogram was normal.  The examiner noted that, in July 2003, a VA cardiologist determined that the Veteran had aortic sclerosis and not stenosis.  Notably, no stress test was conducted and no level of METs was provided by the examiner.

The RO's basis for the reduction was primarily a June 2007 VA examination report.  An ECHO was conducted in conjunction with the examination in July 2007.  Notably, the left ventricular ejection fraction was 55 to 60 percent.  This level of ejection fraction does not approximate a 60 percent disability rating for arteriosclerotic heart disease under Diagnostic Code 7005 because the criteria call for an ejection fraction of 30 to 50 percent.

Although there was some improvement of the ejection fraction, the Veteran still exhibited mild diastolic dysfunction, mild thickening of the aortic valve, mild aortic regurgitation, and trace mitral regurgitation based on the ECHO.  Symptoms included dizziness and lightheadedness, especially when standing up.  The Veteran reported experiencing dyspnea on exertion and he had a history of syncope.  He continued to take medication to control symptoms.  Significantly, a stress test was administered in July 2007.  After four minutes, the test was terminated due to physical pain in the Veteran's hips, knees, thighs, and legs.  An accurate level of METs could not be calculated due to the terminated stress test.  However, the examiner estimated the Veteran's level of METs as a workload greater than 3 but not greater than 5.

The June 2007 VA examiner's estimation of METs is significant because the criteria for a 60 percent rating for arteriosclerotic heart disease are met where there is a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope.  Based on the estimated METs and the reported symptoms, the Veteran's disability met the requirements for a 60 percent rating.  Although the actual level of METs could not be calculated, the rating criteria allow for an estimation by a medical examiner of the level of activity expressed in METs when an exercise test cannot be done for medical reasons.  See 38 C.F.R. § 4.104, Note 2.  The Board finds no reason to doubt the veracity of the June 2007 VA examiner's estimate of the Veteran's level of METs as a workload greater than 3 but not greater than 5.

In consideration of this information, the Board finds that a comparison of the evidence upon which the 60 percent disability rating was awarded with the evidence reviewed in connection with the rating reduction to 30 percent does not reflect improvement in the Veteran's service-connected arteriosclerotic heart disease.  Although the ejection fraction was greater than in the past, the rating criteria do not require that all manifestations set forth for a 60 percent rating be met; rather, only one of three possibilities must be met.  Because there was a workload of greater than 3 METs but not greater than 5 METs, the Veteran's disability continued to be manifested by symptoms warranting a 60 percent rating at the time of the reduction.  See 38 C.F.R. § 4.104, Diagnostic Code 7005.  Thus, based upon the evidence of record, the Board finds that restoration of the 60 percent rating for the Veteran's arteriosclerotic heart disease is warranted effective January 1, 2008.


ORDER

Restoration of a 60 percent rating for arteriosclerotic heart disease from January 1, 2008, is granted.


REMAND

When a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required.  See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).  See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).

The most recent VA compensation examination addressing the severity of the Veteran's arteriosclerotic heart disease, and carotid artery stenosis and hypoplastic left vertebral artery was in January 2009.  Given that the most recent VA examination was conducted over four years ago and that the Veteran's symptoms may have worsened, the Board finds that the claims must be remanded for a new VA examination to determine the current degree of severity of the Veteran's arteriosclerotic heart disease, and carotid artery stenosis and hypoplastic left vertebral artery. 

As to the arteriosclerotic heart disease claim, METs testing is required for evaluation under the rating criteria.  However, a stress test in the past could not be completed by the Veteran.  The prospective examiner must provide an estimation of the level of activity expressed in METs if an exercise test cannot be done for medical reasons.  See 38 C.F.R. §§ 4.100(b); 4.104, Note 2 (2012).

In regard to the Veteran's carotid artery stenosis and hypoplastic left vertebral artery, the manifestations resulting from this disability are not entirely clear.  Research obtained by the RO in September 2004 lists possible complications and symptoms of carotid stenosis as stroke, transient ischemic attack, loss of vision, weakness, speech difficulties, or other neurological signs.  The prospective examiner should identify which symptoms are attributable to this disability and also their level of severity.  For instance, the evidence tends to show that the Veteran's syncope may be related to his carotid artery stenosis, yet syncope is also evaluated as a possible manifestation of arteriosclerotic heart disease.  See 38 C.F.R. § 4.104, Diagnostic Code 7005.  When evaluating disabilities, pyramiding is to be avoided.  See 38 C.F.R. § 4.14 (2012).  Moreover, although loss of vision may be a complication of carotid artery stenosis, the evidence shows that the Veteran also has cataracts and other eye problems.  Thus, it should be determined whether the Veteran has loss of vision as a result of his carotid artery stenosis.

With respect to the claim for a TDIU, the Veteran contends that his service-connected disabilities preclude him from securing and following a substantially gainful occupation.  The evidence shows that the Veteran has not worked since 1980 and that he is currently unemployable.  The salient question is whether his service-connected disabilities are sufficient by themselves to render him unemployable.  For instance, there is medical opinion evidence indicating that the Veteran has arthritis of multiple joints that limits his abilities to perform either physical or sedentary work.  Service connection is not in effect for arthritis.  Importantly, even if his nonservice-connected disabilities cause unemployability, this does not exclude the possibility that his service-connected disabilities also cause unemployability when the nonservice-connected disabilities are not considered.

As a result of the Board's decision to restore the 60 percent rating for arteriosclerotic heart disease, the Veteran currently meets the schedular requirement for a TDIU.  See 38 C.F.R. § 4.16(a) (2012).  On remand, a medical opinion should be obtained that addresses whether the Veteran's service-connected disabilities (either singularly or in combination) preclude him from securing and following a substantially gainful occupation.  His nonservice-connected disabilities are not to be considered; nor is his advancing age.

It appears that the Veteran receives regular treatment at the VA Medical Center (VAMC) in Beckley, West Virginia.  Updated treatment records should be obtained in light of the remand.

Accordingly, this case is REMANDED to the RO or the Appeals Management Center in Washington, D.C., for the following actions:

1.  Obtain the Veteran's more recent treatment records (since June 2012) from the Beckley VAMC.

2.  Arrange for the Veteran to be scheduled for a VA examination by an examiner with the sufficient expertise to ascertain the severity and manifestations of his service-connected arteriosclerotic heart disease, and carotid artery stenosis and hypoplastic left vertebral artery.  The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner, and any indicated studies should be performed.  The RO or the AMC should ensure that the examiner provides all information required for rating purposes.  

For arteriosclerotic heart disease, a stress test should be administered unless there is a medical reason not to do so.  If a stress test cannot be administered, an estimation of the level of activity expressed in METs must be made.

In assessing carotid artery stenosis and hypoplastic left vertebral artery, the examiner should identify all complications and symptoms, including whether there is related stroke, transient ischemic attack, loss of vision, weakness, speech difficulties, or other neurological signs. 

In addition, the examiner should provide an opinion concerning the impact of the service-connected disabilities on the Veteran's ability to work, to include whether they are sufficient by themselves (singularly or in combination) to preclude him from securing and following a substantially gainful occupation.  

(Service connection is currently in effect for arteriosclerotic heart disease, gastritis with duodenal ulcer, diabetes mellitus, carotid artery stenosis and hypoplastic left vertebral artery, hypertension, tinea cruris, and left forearm foreign body.  Nonservice-connected disabilities and advancing age are not for consideration.)

In addition, the supporting rationale for all opinions expressed must be provided.

3.  The RO or the AMC should undertake any other development it determines to be warranted.

4.  Then, the RO or the AMC should readjudicate the claims.  If the benefits sought are not granted to the Veteran's satisfaction, furnish the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the record is returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.  

No action is required of the Veteran until he is otherwise notified by VA, but he has the right to submit additional evidence and argument on the matters the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs