Citation Nr: 1337334 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-29 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a permanent 100 percent evaluation for service-connected coronary artery disease, to include the matter of whether the reduction of the rating for disorder from 100 percent to 30 percent, effective July 1, 2010, was proper. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. Historically, in February 2007, the RO granted service connection for coronary artery disease and assigned a 100 percent rating, effective October 6, 2006. In an August 2007 statement of the case, the RO determined that the assigned 100 evaluation was not considered permanent. In an October 2009 rating decision, the RO proposed to reduce the 100 percent rating to 30 percent. In a March 2010 rating decision, the RO reduced the rating for the Veteran's service-connected coronary artery disease from 100 percent to 30 percent, effective July 1, 2010. The Veteran appealed. In July 2010 and October 2011, the Board remanded the case so that appropriate notice could be provided regarding the RO's decision not to make the Veteran's 100 percent evaluation for his heart disability permanent. The requested procedural corrections were completed. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In a May 2012 decision, the Board found that the rating reduction was proper and denied the claim for permanency of the 100 percent schedular rating for the disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2013 Order, the Court granted the parties Joint Motion for Remand, vacated the Board's May 2012 decision, and remanded the claim for readjudication. FINDINGS OF FACT 1. In November 2009, the RO notified the Veteran of a proposed rating decision to reduce the evaluation for service-connected coronary artery disease from a 100 percent to 30 percent based on an improvement shown in his condition. 2. In March 2010, the RO reduced the 100 percent schedular evaluation assigned for coronary artery disease to 30 percent, effective July 1, 2010. 3. At the time of the reduction, a 100 percent evaluation for the Veteran's disability had been in effect since October 6, 2006, less than five years. 4. At the time of the reduction, material improvement under the ordinary conditions of life had been shown in the Veteran's disability, which was manifested by a workload of 7-9 METs and an ejection fraction of 55 percent. 5. There is no competent probative evidence establishing that the Veteran's service-connected coronary artery disease is permanent in nature with regard to its severity. CONCLUSIONS OF LAW 1. The criteria for restoration of a 100 percent evaluation for coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 3.343(a), 3.344(c), 4.1 - 4.7, 4.100, 4.104, Diagnostic Code 7005 (2013). 2. The criteria for the assignment of a permanent 100 percent disability rating for service-connected coronary artery disease have not been met. 38 U.S.C.A. §§ 1502, 5103A, 5107 (West 2002); 38 C.F.R. § 3.340, 3.343 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where, as here with the claim for an initial compensable rating for the service-connected coronary artery disease, service connection has been granted, that claim is substantiated. No additional VCAA notice is required with respect to the downstream issue of the rating assigned to the now service-connected disability. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). [In any event, with regard to the propriety of the rating reduction aspect of the Veteran's appeal, the applicable notice provisions are set forth at 38 C.F.R. § 3.105(e) and, as discussed below, have been complied with. The Board believes that those specific notice requirements take precedence over the more general notice requirements found in the VCAA. The Court has referred to "the canon of interpretation that the more specific trumps the general." See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more specific statute will be given precedence over a more general one . . . .") (quoting Busic v. United States, 446 U.S. 398, 406 (1980)); see also Kowalski v. Nicholson, 19 Vet. App. 171, 176-7 (2005). Further, notice of the applicable regulation pertaining to the permanency aspect of the Veteran's appeal was provided to the Veteran in November 2011, and his appeal was then readjudicated by the agency of original jurisdiction.] Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claim. VA afforded the Veteran two physical examinations and obtained medical opinions to ascertain the severity of his heart disability at the time the rating reduction was proposed. VA examinations were conducted in April and July 2009. The Veteran had asserted that the July 2009 VA examination was inadequate. Additionally, in the Joint Motion for Remand, the parties agreed that the Board did not provide an adequate statement of reasons and bases for its prior finding that the April and July 2009 VA examinations were adequate. Consequently, the Board will re-address the matter and explain how the examinations are adequate. Initially, the Board observes that, upon examination in May 2005, 17 months prior to the grant of service connection for coronary artery disease, there was no evidence of heart disease. It was noted that the Veteran's diabetes had "not affected his arteries." He had high blood pressure and took clonidine. He was noted to be obese and weighed 252 pounds. He was able to perform all activities of daily living without problems. He was able to walk for 200 feet, but this would sometimes give him leg cramps. He denied swelling of legs, poor appetite, weakness, extreme fatigue. A chest X-ray revealed no active disease. An EKG revealed sinus rhythm with right bundle branch block pattern. An exercise tolerance test revealed the following: symptom limited exercise treadmill test without angina during testing; negative electrocardiogram during exercise stress test for cardiac ischemia; normal heart rate response to exercise; normal blood pressure response to exercise; diminished functional capacity for age; normal heart rate recovery post exercise. The Veteran subsequently filed a claim for service connection for hypertension and right bundle branch block. Upon VA QTC examination in November 2006, the Veteran stated that his diabetes affected his heart resulting in slight heart murmur and that the problem had been present for two years. Complications included shortness of breath, dizziness, chest pain and easy fatigue. Again, it was noted that his diabetes did not affect his arteries. He had intermittent claudication after walking 100 yards and calf pain at rest due to diabetes. The examiner noted a general finding of extreme obesity with a weight of 270 pounds. There were no signs of malaise. Examination of the heart showed no heaves or thrills, regular sinus rhythm, no murmurs or gallops. A chest X-ray was within normal limits. An EKG showed left axis deviation with left anterior fascicular block, anterior ischemia. The diagnosis was "The claimant suffers from the following: Heart problem and the diagnosis is CAD." An echocardiogram showed mildly reduced left ventricular systolic dysfunction. EF = 40%. There were no other significant findings. The clinician stated that "Estimated METS were <3, walking 2mph, shaving." Upon VA examination in April 2009, the Veteran reported that he lost 30 pounds over a nine-month period by following a nutritious diet. The Veteran reported "no history of cardiac symptoms." (Emphasis added). He reported a history of hypertension, but was unsure of the date of diagnosis. The Veteran also denied any history of coronary artery disease, heart attacks, or myocardial infarction. He denied a history of chest pain or palpitations. He denied a history of stent placement or coronary artery bypass graft surgery secondary to coronary artery disease. He denied any history of cardiac catheterization. He reported a history of a diagnosis of right bundle branch block that required no medication. He reported constant numbness and tingling in his toes and constant tingling in his hands. The symptoms increased by walking and were relieved by elevation and rest. He stated that it was affecting his activities of daily living because he could not do prolonged walking or standing secondary to the neuropathy pain. Physical examination revealed that he was well-developed, well-nourished and in no apparent distress. Skin was warm, dry, and pink with good turgor. There was regular heart rate and rhythm. An EKG showed a right bundle branch block. The diagnoses were: no evidence of coronary artery disease at present secondary to diabetes per patient history with no history of coronary artery bypass graft or stent placement with EKG showing right bundle branch block. Exercise tolerance test and echocardiogram were deemed not necessary due to negative history. The Veteran was afforded another examination. Upon VA examination in July 2009, the Veteran gave a history of being diagnosed with arteriosclerotic heart disease that had existed for three years. However, he denied angina, shortness of breath, fatigue, dizziness or syncope attacks. He reported no congestive heart failure. He had no history of rheumatic heart disease and he had no history of heart attacks. He also did not have any surgery for his heart condition, and he was not receiving any treatment for the condition. Additionally, he denied overall functional impairment from his heart condition. His weight was 254 pounds; he was well developed and well nourished. He had a normal S1 and S2, with regular rate and rhythm. There were no heaves or thrills, no murmurs or gallops. A stress test was not performed because it was medically contraindicated because the Veteran had high blood pressure and neuropathy. An EKG showed sinus rhythm with bright bundle branch block and abnormal left axis deviation. An echocardiogram was conducted and the ejection fraction was 55 percent; the estimated METS was >9 as the Veteran could walk uphill at 5 miles per hours and can climb stairs quickly. Both examiners questioned the Veteran as to his medical history and symptomatology and completed a full examination. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A review of the claims folder does not determine the adequacy of a medical report. Moreover, the Board finds that the April 2009 VA examination was not based on an inaccurate factual premise. The Veteran is competent to report his medical history, and, at that examination, the history that he reported was clinically accurate. Although the Veteran was diagnosed with coronary artery disease upon evaluation in 2006, the clinical evidence in that report, in fact, only documented the right bundle branch block. Nevertheless, the Veteran was afforded another VA examination in July 2009. At this examination, the Veteran denied cardiac symptoms. Although he denied a history of coronary artery disease contrary to the November 2006 report, he also denied heart attacks, myocardial infarction, a history of chest pain or palpitations, stent placement or coronary artery bypass graft surgery secondary to coronary artery disease - all clinical indicators of coronary artery disease and its relative severity. He denied any history of cardiac catheterization. He reported a history of a diagnosis of right bundle branch block that required no medication. Again, this is an accurate medical history. There are no medical records in the file contradicting this medical history, other than the simple denial of a history of coronary artery disease. Additionally, clinical testing at the time confirmed these historical findings. An echocardiogram was performed and the examiner concluded that the ejection fraction was 55 percent and the estimated METS were >9. A stress test was medically contraindicated due to high blood pressure and neuropathy. Neither the Board nor VA may insist upon medical testing that is deemed detrimental to a claimant or medically contraindicated. In sum, the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The July 2009 opinion was rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions and reports. The examiner laid a factual foundation for the conclusion that was reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. In his August 2013 Brief, the Veteran's attorney asserted that the parties' agreed that the April and July 2009 VA examiners' failures to consider the entire record rendered the Board's reliance on the findings in their reports to be in error. However, no such error was found in the Joint Motion. It was concluded on page four of the Joint Motion that the parties agree that the Board did "not provide an adequate statement of reasons and bases for finding the April and July 2009 examination reports to be adequate for rating purposes." The Board has addressed this as outlined above. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. See 38 C.F.R. § 3.159 (c) (2). Additionally, the parties did not indicate that relevant information was missing in their Joint Motion for Remand. As such, there is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Therefore, the Board finds that VA has satisfied the duty to assist provisions of law. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis In February 2007, the RO granted service connection for coronary artery disease (claimed as right bundle branch block) and assigned a 100 percent rating, effective from October 6, 2006. While this rating represents the maximum rating available for this condition (see AB v. Brown, 6 Vet. App. 35 (1993)), the basis of the Veteran's appeal pertains to the temporary nature of the award. That is, the Veteran has requested that the rating be made permanent with no likelihood of improvement. According to the August 2007 statement of the case, the RO determined that the assigned 100 percent evaluation was not considered permanent, but rather would be subject to further review. The Veteran filed a substantive appeal to this determination in September 2007. Subsequent to this, and during the pendency of this appeal, in March 2010, the RO reduced the evaluation for the Veteran's service-connected coronary artery disease from 100 percent to 30 percent disabling, effective from July 1, 2010. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. The Veteran was notified of the RO's proposed reduction in October 2009 and the reduction was carried out in March 2010, more than 60 days later. The Veteran did not request a hearing. Thus, the reduction was in accordance with the procedural requirements of 38 C.F.R. § 3.105(e). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). Once permanence is established, a veteran need not undergo further VA examinations in order to retain his total disability rating for the permanent disability. 38 C.F.R. § 3.327(b)(2)(iii). Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms had been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending re-examination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343(a). The Veteran's 100 percent disability rating for his service-connected coronary artery disease was in effect from October 6, 2006 to July 1, 2010, less than five years. Thus, consideration of provisions for adjudicating reductions of ratings that have continued for long periods at the same level, under 38 C.F.R. § 3.344(a) and (b), is not for application. See 38 C.F.R. § 3.344. Instead, an adequate reexamination that discloses improvement in the condition will warrant a reduction in rating. See 38 C.F.R. § 3.344 (c). The Veteran was provided with notice of 38 C.F.R. §§ 3.340 and 3.343 in the November 2011 supplemental statement of the case. While the Veteran did not receive a VCAA letter per se, the procedural framework and safeguards set forth in 38 C.F.R. § 3.343 were fully satisfied. The November 2011 supplemental statement of the case evaluated current findings in relation to the findings when the 100 percent rating was assigned and reached a conclusion about sustained improvement. The Veteran, through his attorney, contends that the reduction of his rating was improper because the VA "has declined to undertake definitive testing to determine the extent" of his heart disability. In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Post-reduction evidence, however, may not be used to justify an improper reduction. Here, the Veteran's coronary artery disease is rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. Under Diagnostic Code 7005, a 10 percent rating is warranted when the evidence shows workload of greater than 7 METS but not greater than 10 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required. A 30 percent rating is warranted for workload of greater than 5 METS but not greater than 7 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted if there is 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, there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned with coronary artery disease resulting in chronic congestive heart failure; or, workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2013). One MET 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. When the level of METS at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METS by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METS and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. The 100 percent evaluation the Veteran seeks to have restored was awarded based on a November 2006 VA examination. That examination revealed a two-year history of shortness of breath, dizziness, chest pain, and easy fatigue. An EKG showed left axis deviation with left anterior fascicular block and anterior ischemia. An echocardiogram showed mildly reduced left ventricular systolic dysfunction, with an ejection fracture of 40 percent. There were no other significant findings. Based on this examination and the Veteran's reported medical history, the November 2006 VA examiner estimated that the Veteran's METs level was less than three, "walking 2 miles per hour, shaving." Based on this evidence, the RO granted a 100 percent disability rating, effective October 6, 2006. The rating reduction was based on the results of April and July 2009 VA examinations. At the April 2009 VA diabetes examination, the Veteran denied any history of cardiac symptoms. Specifically, he denied chest pain, palpitations, shortness of breath, dyspnea on exertion, or dizziness. He denied heart attacks, or myocardial infarction. He denied a history of stent placement or coronary artery bypass graft surgery secondary to coronary artery disease. He denied any history of cardiac catheterization. He was not taking any medication for his right bundle branch block. The examiner concluded that he could not do prolonged walking or standing secondary to neuropathy pain, not cardiac disability. He had retired 5-6 years earlier. An EKG showed right bundle branch block. The examiner found no evidence of coronary artery disease and declined to perform either an exercise treadmill test or an echocardiogram due to the negative history. The failure to diagnose coronary artery disease did not render the examination inadequate. At the July 2009 VA heart disease examination, the Veteran denied angina, shortness of breath, fatigue, dizziness, or syncope attacks. He reported that he was not receiving any treatment for his heart disability - a statement supported by the medical records. He also denied any overall functional impairment from this condition. The examiner declined to perform a stress test due to the Veteran's hypertension and neuropathy disabilities. An EKG showed a right bundle branch block and abnormal left axis deviation. An echocardiogram showed that the ejection fraction of the left ventricle was 55 percent. The examiner estimated that the Veteran's MET level was 7-9 because he was able to climb stairs at a moderate speed and saw wood. After considering the pertinent medical history, the VA examination reports that supported the establishment of the 100 percent rating, as well as the subsequent examinations that documented improvement in the disability, as detailed above, the Board finds that the reduction of the Veteran's disability rating from 100 percent to 30 percent, in the March 2010 rating decision, was proper. Indeed, the April and July 2009 VA examinations showed clear improvement in the Veteran's service-connected coronary artery disease, as his estimated MET level improved from less than three to between seven and nine. Although left ventricular dysfunction remains, his ejection fraction improved from 40 percent to 55 percent. In addition, the evidence shows that his ability to function under the ordinary conditions of life has improved. In this regard, the clinician concluded that the Veteran was now able to climb stairs and saw wood without suffering from cardiac-related symptoms like shortness of breath and fatigue, which represents a significant improvement in the disability. In the August 2013 Brief, the Veteran's attorney has argued that the Veteran's subsequent statements describing his symptoms in response to the proposal to reduce the rating are more probative than the clinical findings in the April and July 2009 VA examinations. The Board disagrees. The Veteran is a layperson and is competent to report symptoms. However, he is not competent to attribute any particular symptom to a specific disability - particularly in light of his clinical history that includes obesity and neuropathy as other factors that may limit his mobility and physical capabilities. The Veteran's intuition about the cause of specific symptoms is not sufficient to outweigh the opinion of the medical personnel that considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.") See also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Thus, the Board finds that the Veteran's lay statements are not entitled to significant weight as compared to the medical opinions of record that were specifically obtained to ascertain the severity of his service-connected heart disability. The Board acknowledges that the April and July 2009 VA examiners did not review the claims file. However, the proposal to reduce the Veteran's disability rating, and the effectuation of the reduction, were based on a complete review of the Veteran's medical history, as reflected in the discussion in the October 2009 and March 2010 rating decisions. Therefore, the Board finds that the reduction in the Veteran's disability rating was adequately based upon review of the entire history of the Veteran's disability. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). In sum, the Board finds that the competent evidence of record, as detailed above, satisfies the regulatory standards of 38 C.F.R. § 3.344(c), because adequate reexamination of the Veteran's disability rating disclosed improvement warranting a reduction in the rating. Thus, the RO's reduction of the Veteran's disability rating for the service-connected coronary artery disease from 100 percent to 30 percent is found to be warranted by the evidence of record. Furthermore, and on the basis of the finding by competent and credible evidence that the Veteran's coronary artery disease has improved, permanency of total impairment resulting from this disability has clearly not been shown. 38 C.F.R. § 3.340(b). Thus, a finding of permanency of the 100 percent evaluation for service-connected coronary artery disease is not warranted. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved in favor of the Veteran, and the benefit-of-the-doubt rule is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER A finding that the reduction in the disability rating for the service-connected coronary artery disease from 100 percent to 30 percent, effective July 1, 2010, was improper is denied. The claim for permanency of the 100 percent schedular rating for the service-connected CAD is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs