Citation Nr: 1617408 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 13-36 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the reduction of the rating for service-connected coronary artery disease, status post orthotopic heart transplant with bilateral avascular femoral necrosis, from 60 percent to 30 percent, effective September 1, 2012, was proper. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. FINDINGS OF FACT 1. A January 2011 rating decision granted service connection for coronary artery disease, status post orthotopic heart transplant, and assigned an evaluation of 30 percent, effective August 31, 2010. 2. In a July 2011 rating decision, the RO increased the rating to 60 percent, effective August 31, 2010. 3. A June 2012 rating decision reduced the rating for the heart disability from 60 percent to 30 percent, effective September 1, 2012. 4. Evidence establishing improvement in the Veteran's underlying heart disability, such that his ability to function under the ordinary conditions of life and work were bettered, was not of record at the time of the June 2012 rating decision. CONCLUSION OF LAW The reduction of the rating for the Veteran's service-connected coronary artery disease was not proper; it is therefore void, and a restoration of a 60 percent rating is warranted. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 3.344, 4.7, 4.104 Diagnostic Code (DC) 7019 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal stems from disagreement with a 38 C.F.R. § 3.105(e) reduction and is not based on a claim or application for benefits. The regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements, which will be discussed in greater detail below. See 38 C.F.R. § 3.105(e), (i). VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including VA treatment records, and a VA examination of the Veteran. There is no indication that any relevant outstanding records exist with respect to the claim for restoration of a 60 percent evaluation. A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. Service connection for coronary artery disease, status post orthotopic heart transplant, was granted by a January 2011 rating decision and a 30 percent evaluation was awarded, effective August 31, 2010. 38 C.F.R. § 4.104, DC 7019. In a July 2011 rating decision, the RO increased the rating to 60 percent, effective August 31, 2010. In a January 2012 rating decision, the RO proposed to reduce the rating for the Veteran's heart disability from 60 percent to 30 percent. The Veteran was notified of this proposal in a letter dated in January 2012. In the letter, the Veteran was notified that he could request a personal hearing and was given 60 days in which to submit additional evidence that his compensation payments should be continued at their present level. 38 C.F.R. § 3.105(e). A June 2012 rating decision implemented the reduction of the heart disability rating from 60 percent to 30 percent, effective September 1, 2012. The RO informed the Veteran of this in a letter dated June 22, 2012. The Veteran appealed this decision. Where a reduction in an 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 must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). By a January 2012 rating decision and January 24, 2012 notice letter to the Veteran, the RO satisfied these procedural requirements. The critical question, then, becomes whether the reduction in rating was proper based on the evidence of record. With respect to whether the evidentiary requirements for reducing the disability ratings have been met in this case, the Board notes that 38 C.F.R. § 3.344, as pertaining to stabilization of disability ratings, is not for application, because the 60 percent rating for the heart disability had not been in effect for a period in excess of 5 years. Rather, the rating was only in effect from August 31, 2010 until the reduction was effectuated on September 1, 2012. Nevertheless, according to 38 C.F.R. § 3.344(c), in cases where a disability rating has been in effect for less than 5 years, as in this case, reexaminations disclosing physical improvement in a disability will warrant a rating reduction. See 38 C.F.R. § 3.344(c). In Brown v. Brown, the U.S. Court of Appeals for Veterans Claims (Court) held a reduction must be based on improvement in a disability that reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 5 Vet. App. 413 (1993). A rating reduction must also be based on adequate examinations. Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that failure of examiner to review claims file rendered reduction decision void ab initio). Further, a rating reduction must have been supported by the evidence on file at the time of the reduction, although pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected coronary artery disease, status post orthotopic heart transplant, is rated under 38 C.F.R. § 4104, DC 7019. Under Diagnostic Code 7019, a minimum 30 percent evaluation is to be assigned following a heart transplant. A 60 percent evaluation is assigned when 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 resulting in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with ejection fraction of 30 to 50 percent. A maximum 100 percent evaluation is assigned when there is chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The focus of the reduction question is on whether there was improvement in the Veteran's heart disability at the time of the proposed rating decision in January 2012 and the effectuating rating decision in June 2012. In January 2011, the Veteran underwent a VA examination where he was diagnosed with ischemic heart disease status post heart transplant for ischemic heart disease. A diagnostic exercise test was not performed. However, the VA examiner estimated the lowest level of activity at which Veteran reports symptoms of dyspnea, fatigue and dizziness at greater than 3 METS but not greater than 5 METS. There was no test conducted of the left ventricular ejection fraction (LVEF). The examination report noted that if LVEF testing was not of record, but available medical information sufficiently reflected the severity of the Veteran's cardiovascular condition, then LVEF testing was not required. The VA examiner provided no further information on the adequacy of the medical information of record in describing the severity of the Veteran's service-connected disability. A November 2011 VA cardiology procedure consult noted the Veteran's left ventricular estimated ejection fraction was 60 percent. In January 2012, a VA examiner was asked to comment on whether the Veteran's left ventricular ejection fraction from November 2011 or his estimated METs on his January 2011 VA examination most closely approximated the Veteran's cardiac function alone. The VA examiner was further asked to provide a medical basis for her determination. In response, the VA examiner stated the Veteran's ejection fraction likely best represented cardiac function as the Veteran had other comorbidities that would impact his METs. The VA examiner did not provide any further description of these other comorbidities or how they impacted the Veteran's METs workload level. At his February 2016 Board hearing, the Veteran testified the severity of his heart disability symptoms had not improved between his January 2011 VA examination and September 2012. Rather, the Veteran stated that his symptoms have worsened. He testified to experiencing fatiguing easier and not having the strength and stamina he used to have. Based on a review of the evidence of record, the Board finds that the reduction of the rating for the Veteran's heart disability from 60 percent to 30 percent, effective September 1, 2012, is not warranted, and it is therefore void. The RO's reduction was predicated on a VA examiner's conclusory opinion that the Veteran's left ventricular ejection fraction test results obtained in November 2011 best approximated the state of the Veteran's cardiac function. However, there is no indication in the record that the workload level results provided by the January 2011 VA examiner were inadequate or represented an assessment of anything other than the severity of the Veteran's cardiovascular condition. Further, the Veteran did not undergo any reexamination of the current state of the Veteran's workload level, and the January 2012 VA examiner did not provide any estimate of the lowest level of activity at which Veteran reported symptoms of dyspnea, fatigue and dizziness due exclusively to his service-connected heart disability. Therefore, the evidence of record shows no actual improvement in the Veteran's cardiovascular condition as to warrant a reduction of the 60 percent rating that was assigned in the July 2011 rating decision. In summary, although the RO complied with the procedures governing rating reductions found in 38 C.F.R. § 3.105(e) when it reduced the disability rating for the Veteran's service-connected coronary artery disease, the Board finds the reduction was not supported by evidence that showed a maintained improvement in the severity of the Veteran's heart disability. Accordingly, restoration of the 60 percent rating for the heart disability is warranted. ORDER The reduction of the rating of the Veteran's service-connected coronary artery disease, status post orthotopic heart transplant with bilateral avascular femoral necrosis, from 60 percent to 30 percent effective September 1, 2012, was not proper; the 60 percent evaluation is restored, effective September 1, 2012. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs