Citation Nr: 1800051 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-09 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to higher staged initial ratings for service-connected coronary artery disease, status post coronary artery bypass graft, rated at 60 percent prior to June 1, 2012, and 10 percent from June 1, 2012, to include restoration of a 60 percent rating. 2. Entitlement to a compensable initial disability rating for a residual scar from a coronary artery bypass graft. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and C. B. ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2011, and March 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The May 2011 rating decision granted service connection for coronary artery disease, status post coronary artery bypass graft, and assigned staged initial ratings of 30 percent from August 10, 2009 and 60 percent from March 18, 2010. The May 2011 rating decision also granted service connection for a scar, status post coronary artery bypass graft (CABG), and assigned a noncompensable initial rating effective March 22, 2010. A December 2011 rating decision proposed reduction of the 60 percent rating for coronary artery disease, status post CABG, to 10 percent. The March 2012 rating decision effectuated the reduction to 10 percent, effective June 1, 2012. The Veteran testified before the undersigned Veterans Law Judge in a June 2017 videoconference hearing. A transcript of that hearing is of record. The Board recognizes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not contemplate a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Here, the VA received a notice of disagreement from the Veteran in June 2011 in response to the May 2011 rating decision. The disagreement thanked the VA for the ratings granted, but expressly disagreed with the evaluation of the Veteran's scar as noncompensable. Following the March 2012 rating decision reduction of the rating for coronary artery disease, status post CABG, to 10 percent, the Veteran submitted a notice of disagreement with that reduction in April 2012. The VA issued a Statement of the Case in March 2014, and characterized the issue as evaluation of coronary artery disease status post bypass graft, currently rated as 10 percent disabling. The Veteran has not contended that his coronary artery disease warrants ratings higher than initially granted in the May 2011 rating decision, and has only disagreed with the reduction from 60 percent to 10 percent. However, during the Veteran's hearing, he was informed that one of the issues on appeal was entitlement to an increased rating for his coronary artery disease, rated at 60 percent prior to June 1, 2012, and 10 percent from June 1, 2012. Accordingly, the Board has characterized the issues above to include entitlement to an increased rating for coronary artery disease. See e.g., Percy v. Shinseki, 23 Vet. App. 37 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. However, neither the record nor the Veteran's statements and testimony indicate that he is unemployable due to his service-connected scar or coronary artery disease. Therefore, the issue of entitlement to a TDIU is not raised in this case. FINDINGS OF FACT 1. A March 2012 rating decision reduced the disability rating of 60 percent for the service-connected coronary artery disease to 10 percent, effective June 1, 2012. 2. The March 2012 reduction in the disability rating assigned to the coronary artery disease was supported by evidence demonstrating improvement in the disability. 3. The most probative evidence of record shows that the Veteran's coronary artery disease was at worst manifested by METs levels of greater than 3 but no greater than 5 resulting in dyspnea and fatigue for the period on appeal prior to June 1, 2012. 4. The most probative evidence of record does not show that the Veteran's coronary artery disease was manifested by symptoms worse than a workload from 7 to 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication treatment for the period prior to June 27, 2017. 5. The most probative evidence of record shows that the Veteran's coronary artery disease was at worst manifested by METs levels of greater than 5 but less than 7 for the period on appeal from June 27, 2017. CONCLUSIONS OF LAW 1. The reduction of the rating for the Veteran's service-connected coronary artery disease disability from 60 percent to 10 percent, effective June 1, 2012, was proper; the criteria for restoration of the 60 percent rating have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.344, 4.40, 4.45, 4.104, Diagnostic Codes 7005, 7017 (2012). 2. The criteria for a disability rating in excess of 60 percent for coronary artery disease, status post coronary artery bypass graft, prior to June 1, 2012 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Codes 7005, 7017 (2017). 3. The criteria for a rating in excess of 10 percent for coronary artery disease, status post coronary artery bypass graft, from June 1, 2012 through June 26, 2017 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Codes 7005, 7017 (2017). 4. The criteria for a 30 percent rating for coronary artery disease, status post coronary artery bypass graft, from June 27, 2017, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7017 (2017). 5. The criteria for a compensable initial disability rating for a scar residual of coronary bypass graft surgery have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the matters adjudicated herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board notes that since the issuance of the last statement of the case, new evidence has been received by the Board. The Board further notes that prior to submission of that evidence, the Veteran's representative expressly waived RO consideration of that evidence at the June 2017 hearing. Rating Reduction The criteria governing rating reductions for certain service-connected disabilities are found in 38 C.F.R. § 3.344. The provisions of 3.344(a) and (b) apply to ratings that have been continued for five years or more. Here, the 60 percent rating had been in effect for less than five years at the time the reduction took place. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply. For service-connected disabilities not covered by 38 C.F.R. § 3.344 (a) and (b), reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c). With regard to rating reduction matters, VA regulations provide that where the reduction in the rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating action will be taken. A veteran will be notified of the proposed reduction and that he or she has 60 days in which to present evidence showing why the reduction should not be implemented and to request a hearing. The reduction will be made effective the last day of the month during which the 60-day period expires. 38 U.S.C.A. § 5112 (b)(6); 38 C.F.R. § 3.105 (e). Such requirements were completed. The Veteran was notified of the December 2011 proposed reduction and his right to request a hearing that same month. Further, his reduction took place effective June 1, 2012, which was after the expiration of the 60-day period. Id. The issue is whether the rating reduction was proper due to improvement of the service-connected disability. VA regulations require that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (2015). The provisions of 38 C.F.R. § 4.2 establish that it is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Furthermore, 38 C.F.R. § 4.13 provides that 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. 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 ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-421 (1993). Diagnostic Code 7005 for rating coronary artery disease (CAD), and Diagnostic Code 7017 for rating coronary bypass surgery, provide that a 10 percent rating is warranted for coronary artery disease (CAD) resulting in a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; where continuous medication is required. A 30 percent rating is warranted for a workload 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 rating is warranted for 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 an ejection fraction (LVEF) of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; LVEF of less than 30 percent. 38 C.F.R. § 4.104. Analysis The Board finds that the Veteran's disability rating was correctly reduced. At the time of the rating reduction to 10 percent, effective June 1, 2012, the 60 percent rating had been in effect for less than 2 years, as effective from March 18, 2010. As such the provisions of 38 C.F.R. § 3.344 are not applicable. The provisions of 38 C.F.R. § 3.344(c) specify that the considerations in § 3.344(a) and (c) are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344 (2015). The Court has held that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that 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. Additionally, 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 ordinary condition of life and work. Brown, supra; 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 the Board concludes that a fair preponderance of the evidence weighs against the claim. Brown, supra. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). A March 2010 VA examination found that the Veteran was capable of METs levels of 5 to 7 post heart surgery. Neither cardiac stress testing nor an echocardiogram was obtained. The Veteran's exercise tolerance was estimated due to known disease. The Veteran reported hiring someone to do chores, that he did not exercise, and had dyspnea on mild exertion. The exam did not indicate whether there was evidence of cardiac hypertrophy or dilatation. A subsequent VA examination in December 2011 estimated the Veteran's METs level at greater than 7 to 10 METs, and a chest X-ray did not show evidence of cardiac hypertrophy or dilatation. With regard to the Veteran's function, the Veteran reported doing yard work, mowing the lawn, climbing stairs, and bike riding. Thus, the Board finds that the VA examination showed improvement in the Veteran's disability to a level most closely approximating a 10 percent disability rating, to include consideration of functional impact. Therefore, the reduction from 60 percent to 10 percent was proper. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2016). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2016). Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. Under 38 U.S.C.A. §7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). Analysis- Coronary Artery Disease With regard to the period on appeal prior to June 1, 2012, the record does not show, and the Veteran has not alleged, that he has a workload of 3 METs or less, has chronic congestive heart failure, or left ventricular dysfunction with an ejection fraction of less than 30 percent. As noted above, VA examinations in March 2010 and December 2011 showed no less than 5 METs, and the December 2011 VA examination was negative for congestive heart failure. The record does not contain results of an echocardiogram. Thus, a rating in excess of 60 percent for the period prior to June 1, 2012 is not warranted. With regard to the period on appeal from June 1, 2012, the Veteran testified at his hearing that he experiences fatigue and dizziness, and gets treatment from a private doctor. Private treatment records show that a July 27, 2017 exercise stress test yielded METs levels of 5.1. The Veteran has not alleged and the record does not show congestive heart failure or METs of 3 or less. The record does not contain stress testing, echocardiograms, or x-rays prior to July 27, 2017 during this period. Thus, the criteria for entitlement to a 30 percent rating, but no higher, are met from July 27, 2017. Analysis- Scar The Veteran's scar is currently rated as noncompensable under DC 7805, effective August 10, 2009. As the issue for a higher rating arose from a disagreement with the rating decision which granted service connection and assigned the initial rating, the relevant period on appeal is from the date of service connection. Diagnostic Code 7801 similarly provides for higher ratings for scars other than of the face, head, or neck if they are deep and nonlinear. Diagnostic Code 7802 provides a 10 percent rating for scars other than of the head, face, or neck that are superficial and nonlinear and cover areas of 144 square inches or greater. Diagnostic Code 7804 provides that one or two painful or unstable scars warrant a 10 percent rating, three or four scars that are unstable or painful warrant a 20 percent rating, and five or more scars that are unstable or painful warrant a 30 percent rating. Diagnostic Code 7805 provides that any disabling effects not considered in a rating provided under Diagnostic Code 7800 through 7804 are to be considered under an appropriate diagnostic code for any disabling effects. An unstable scar is defined as one where, for any reason, there is frequent loss of covering the skin over the scar. In his June 2011 notice of disagreement, the Veteran stated that his scar is painful. A December 2011 examination found that the Veteran's scars on his anterior trunk from heart surgery, measured at 21 cm, 2.5cm, and 2.5 cm, were linear, and not painful or unstable. At the Veteran's June 2017 hearing, he testified that his scars were not painful. He stated that they become itchy, and sometimes the skin gets scaly. While the Board acknowledges the Veteran's June 2011 claim that his scar was painful, the Board affords more probative weight to the findings of the medical examiner who conducted the December 2011 examination, as he applied his medical expertise in conducting his examination of the Veteran. Further, the examination is consistent with the Veteran's current statements with regard to the severity of his scars. There are no additional limiting affects alleged by the Veteran. The most probative evidence does not show and the Veteran has not alleged that his linear scars are unstable or painful, and as such, a compensable rating is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to restoration of a 60 percent rating for service-connected coronary artery disease, status post coronary artery bypass graft, rated at 60 percent prior to June 1, 2012, and 10 percent from June 1, 2012, is denied. Entitlement to a staged rating in excess of 60 percent for service-connected coronary artery disease, status post coronary artery bypass graft prior to June 1, 2012 is denied. Entitlement to a staged rating in excess of 10 percent for service-connected coronary artery disease, status post coronary artery bypass graft, from June 1, 2012 through July 26, 2017, is denied. Entitlement to a staged rating of 30 percent for service-connected coronary artery disease, status post coronary artery bypass graft from July 27, 2017 is granted. Entitlement to a compensable initial disability rating for a residual scar from a coronary artery bypass graft is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs