Citation Nr: 1757598 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-22 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether the reduction in the disability rating for coronary artery disease from 60 percent disabling to 30 percent, effective October 1, 2013, was proper. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: James P. Coletta, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Army from May 1967 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In that decision, the RO reduced the rating for coronary artery disease (ischemic heart disease) (Nehmer granted), from 60 percent to 30 percent, effective October 1, 2013. The Board notes that although the RO developed this appeal as an increased rating claim, the Veteran's representative confirmed at the June 2017 hearing testimony that the issue on appeal is whether the reduction in the disability rating for coronary artery disease, from 60 percent to 30 percent, effective October 1, 2013, was proper. Furthermore, due to the favorable outcome of this appeal, the Board finds no prejudice in proceeding with a decision in the matter on appeal. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As mentioned above, in June 2017, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. As for the matter of representation, the record reflects that, the Veteran filed an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) appointing the American Legion as his power of attorney (POA) in February 2009. In November 2013, the Veteran provided another POA and filed a new VA Form 21-22, appointing James P. Coletta, Esq. as his representative. The Board notes that a POA may be revoked at any time, and unless specifically noted otherwise, receipt of a new POA constitutes a revocation of an existing POA. 38 C.F.R. § 14.631(f)(1) (2017). Thus, the Board recognizes this change in representation. The issue of entitlement to TDIU due to a service-connected disabilities being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The medical evidence of record at the time of the reduction in rating of coronary artery disease fails to show actual improvement in the disability. CONCLUSION OF LAW The criteria for restoration of a 60 percent rating for coronary artery disease, from October 1, 2013, are met. 38 U.S.C. § 1155, 5107 (West 2012); 38 C.F.R. § 4.3, 3.344, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION There are specific particularized notice requirements that apply in cases where the issue is a reduction in rating. These procedural safeguards afforded to the claimant set forth under 38 C.F.R. § 3.105 (e) are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Pursuant to 38 C.F.R. § 3.105 (e), initially, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. 38 C.F.R. § 3.105(e). The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. Id. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued 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. Id. In addition, the Veteran is to be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105(h). These are such important safeguards that the U.S. Court of Appeals for Veterans Claims has held that where VA has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Here, the Board concludes that the procedural requirements for reduction have been satisfied in this case. By way of procedural history, in a February 2011 rating decision, the RO granted service connection for coronary artery disease and assigned an initial rating of 30 percent, effective February 25, 2009, and 60 percent, effective September 9, 2010. In a March 2013 rating decision, the RO notified the Veteran of a proposal to reduce the disability rating for his service-connected coronary artery disease from 60 percent to 30 percent. The Veteran and his representative were additionally notified of that proposal by a letter dated March 2013 that included information on their right to request a hearing, and informing the Veteran that his benefits would be reduced if he failed to submit additional evidence within 60 days. The Veteran responded with his disagreement to the proposed reduction, but did not submit additional evidence or request a hearing. Thereafter, in a July 2013 rating decision, the RO effectuated the reduction of the disability rating for the Veteran's service-connected coronary artery disease from 60 percent to 30 percent, effective October 1, 2013. The Veteran was advised of such reduction in a letter dated August 1, 2013. As such, the proper procedural requirements as to reduction cases were followed. As the procedural requirements for a reduction under 38 C.F.R. § 3.105(e) have been appropriately followed, the Board now turns to the substance of the claim. Initially, the Board notes that the 60 percent disability rating for the service-connected coronary artery disease was in effect from September 9, 2010 to October 1, 2013; in other words, the Veteran's pre-reduction disability evaluation was in effect for less than five years at the time of the rating reduction. Therefore, the provisions of 38 C.F.R. § 3.344 (c), which set forth regulatory requirements for evaluations in effect for less than five years, apply. 38 C.F.R. § 3.344 (c) provides that, for disabilities which have not become stabilized and are likely to improve, reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. Here, the RO reduced the disability rating based on the result of a VA examination and VA outpatient treatment reports from Battle Creek, Michigan. See March 2013 Notification to the Veteran. In considering the propriety of a reduction, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). It is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. These provisions impose a clear requirement that rating reductions be based on the entire history of the Veteran's disability. Brown v. Brown, 5 Vet. App. 413 (1993). The rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13. In any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. 413; 38 C.F.R. § 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 413. Turning to the disability ratings themselves, disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two rating are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's coronary artery disease has been rated under Diagnostic Code 7005 for arteriosclerotic heart disease. 38 C.F.R. § 4.104. A 60 percent rating is warranted for disability resulting in 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. A 30 percent rating is warranted for disability resulting in a workload of greater than 5 METs (metabolic equivalents) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. In this case, a 60 percent rating, effective September 9, 2010, was assigned by the RO in the February 2011 rating decision based in large part on the results of the September 2010 SPECT analysis, which shows a left ventricular dysfunction with ejection fraction of 50 percent. See February 2011 VA rating decision; 38 C.F.R. § 4.104, Diagnostic Code 7005 (A 60 percent rating is warranted in situations involving left ventricular dysfunction with an ejection fraction of 30 to 50 percent). Before the February 2011 RO were also two other SPECT tests dated October 2007 and February 2010, which showed left ventricular dysfunction with ejection fractions of 52 percent and 59 percent, respectively, which are considered borderline for a 60 percent evaluation, and METs of 5.8 cardiac stress tests from October 2007 and February 2010 that are considered borderline for a 60 percent evaluation as well. However, given that the September 2010 SPECT analysis was the most recent diagnostic test available at that time, the RO considered the September 2010 SPECT analysis showing left ventricular dysfunction with ejection fraction of 50 percent to be the true indicator of the current level of disability at the time. See February 2011 Rating Decision. Therefore, the RO found the evidence, at least in equipoise, to decide in favor of the Veteran. See id. On the other hand, the reduction in rating from 60 percent to 30 percent, effective October 1, 2013, was based in large part on a January 2012 VA examination report and VA Battle Creek, Michigan outpatient treatment reports from September 2010 through October 2010. The January 2012 VA examination and aforementioned records show that evidence of the Veteran having left ventricular dysfunction with ejection fraction of 65 percent, cardiac dilatation on echocardiogram, cardiac hypertrophy on echocardiogram, and workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea and fatigue. Based on the objective improvement, particularly with regard to the Veteran's left ventricular dysfunction with ejection fraction percentage - from 52 percent in the September 2010 SPECT analysis to 65 percent in the January 2012 VA examination, in the July 2013 rating decision, the RO effectuated the reduction of the disability rating for the Veteran's service-connected coronary artery disease from 60 to 30 percent, effective October 1, 2013. Upon review of all of the evidence of record, the Board has determined that while there may have been an improvement in the Veteran's condition, particularly with regard to the Veteran's left ventricular dysfunction with ejection fraction percentage - from 52 percent in the September 2010 SPECT analysis to 65 percent in the January 2012 VA examination - there is nevertheless no evidence that such improvement actually indicated an improvement in the ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. 413; 38 C.F.R. § 4.2, 4.10. In the January 2012 VA examination report, which itself was salient in the RO's reduction, the examiner reported that at the time of the examination, the Veteran's heart disability was nevertheless still impacting the Veteran's ability to function under ordinary conditions of life and work: [Veteran s]tates now he cannot work more than 15 minutes his heart races, chest pain and he becomes light headed. This began June 2010. He was seen by A2 Cardiology this past year. States he could function as a greeter at Meijers or Walmart. States unable to perform heavy lifting jobs. States his knees becomes painful when climbing up and out of semi-trucks. He feels fatigued after driving for long periods. States diabetes does not have much impact on his ability to work. States he has no problem performing personal care. He no longer mows the lawn. He has nitroglycerin that was last taken one month ago. January 2012 VA examination report. Moreover, the Veteran's June 2017 Board hearing testimony also strongly indicates that the improvement in the Veteran's left ventricular dysfunction with ejection fraction percentage - from 52 percent in the September 2010 SPECT analysis to 65 percent in the January 2012 VA examination may not be indicative of the actual disability level. See June 2017 Board hearing testimony transcript (Veteran reported that when he does anything exertional, such as pulling a trash cart that is on wheels, he will be out of breath and experienc chest pain and a rapid heartbeat). Considering all of the above, the Board finds that the medical evidence of record at the time, when considered in light of subsequent medical evidence, shows that the reduction in evaluation of coronary artery disease failed to show actual improvement in the disability. Therefore, the reduction in rating was not proper. Accordingly, the criteria for restoration of a 60 percent rating for coronary artery disease are met, and the 60 percent rating must be restored, effective from October 1, 2013. Reasonable doubt has been resolved in favor of the Veteran in making this finding. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Restoration of a 60 percent rating for coronary artery disease, effective October 1, 2013, is granted. REMAND The AOJ must implement the restoration of the 60 percent evaluation and consider the issue of TDIU. Accordingly, the case is REMANDED for the following action: 1. The AOJ should re-adjudicate the Veteran's claim for TDIU in light of the evidence of record including the decision above. If any benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (West 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs