Citation Nr: 1800115 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-31 739A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating for coronary artery disease in excess of 30 percent from August 24, 2012, in excess of 60 percent from December 20, 2013 to March 1, 2015, and in excess of 30 percent thereafter, to include the propriety of the reduction from 60 percent to 30 percent. 2. Entitlement to an effective date earlier than August 24, 2012, for service-connected coronary artery disease. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for neuropathy (claimed also as left arm pain, fibromyalgia and polyarthritis). 5. Entitlement to service connection for allergies (claimed also as shortness of breath) as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1961 to July 1969, and again from January 1991 to March 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in July 2013 and in September 2016 of a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a September 2017 videoconference hearing at the RO before the undersigned veterans law judge (VLJ) sitting in Washington, D.C. A transcript of the hearing is of record. FINDINGS OF FACT 1. The reduction of the evaluation for the Veteran's coronary artery disease from 30 percent disabling to 10 percent disabling, effective March 1, 2015, was not proper, as the Veteran's coronary artery disease from December 20, 2013 was manifested by a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. 2. For the period prior to December 20, 2013, the Veteran's coronary artery disease was not manifested by more than one episode of acute congestive heart failure in the past year; a 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 of 30 to 50 percent. 3. For the period from December 20, 2013, the Veteran's coronary artery disease is manifested by a workload of greater than 3 METs by not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. 4. Prior to the promulgation of a decision in the appeal, the Veteran testified during the June 2016 hearing that he requested a withdrawal of his appeal for the issues of entitlement to service connection for hypertension, allergies, and neuropathy, as well as his appeal of the issue of entitlement to an effective date prior to August 24, 2012 for the grant of service connection for coronary artery disease. CONCLUSIONS OF LAW 1. The reduction of the rating for the service-connected coronary artery disease from 60 percent to 30 percent, effective March 1, 2015, was improper, and the 60 percent rating is restored. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017). 2. The criteria for a rating in excess of 30 percent for coronary artery disease for the period prior to December 20, 2013, and in excess of 60 percent therefrom, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). 3. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to an effective date earlier than August 24, 2012 for service-connected coronary artery disease have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for neuropathy have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for allergies have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Increased Rating for Coronary Artery Disease Service connection for coronary artery disease was granted in July 2013 and was assigned a 30 percent evaluation effective August 24, 2012. The Veteran filed a notice of disagreement in October 2013 requesting an evaluation greater than 30 percent. Thereafter, in an April 2014 rating decision the RO increased the evaluation of the coronary artery disease to 60 percent effective December 20, 2013. In a December 2014 rating decision, after providing the Veteran with advance warning, the RO decreased the evaluation of the coronary artery disease back to 30 percent effective March 1, 2015. The Veteran seeks to have the 60 percent rating restored for the period from March 1, 2015 and further seeks to have a 60 percent rating apply for the period prior to December 20, 2013. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran's coronary artery disease is currently evaluated under Diagnostic Code 7005 as 30 percent disabling, and had been assigned a 30 percent evaluation prior to December 20, 2013. As stated, for the period from December 20, 2013 to March 1, 2015, the coronary artery disease was evaluated as 60 percent disabling. Pursuant to Diagnostic Code 7005, a 30 percent evaluation is warranted when there is a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. A 60 percent evaluation is warranted when there is more than one episode of acute congestive heart failure in the past year, or; a 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 of 30 to 50 percent. A 100 percent evaluation is warranted when there is chronic CHF, or; a 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. An August 2012 Coronary Artery Scoring examination by Valley Radiology showed severe calcification. A September 2012 exercise-stress myocardial perfusion study by Escondido Cardiology Associates revealed abnormal myocardial perfusion, left ventricular ejection fraction of 74%, and no further abnormalities, although there was a suggestion of ischemia in the distribution of the right coronary artery. An Ischemic Heart Disease Disability Benefits Questionnaire (DBQ) dated in September 2012 indicates that the Veteran was diagnosed with coronary artery disease in August 2012. The examiner, who identified themselves as a doctor, found that the Veteran had a METs level of 5-7, at which point he exhibited dyspnea. The physician denied the presence of any other associated symptomatology or diagnoses, to include any episodes of congestive heart failure. The Veteran was afforded a VA examination in October 2012 to evaluate the nature and etiology of his coronary artery disease. The examiner dismissed any history of congestive heart failure and found no evidence that the Veteran required the use of continuous medication. The Veteran was evaluated as having a METs level of 5-7, while an EKG showed no abnormalities at rest. It was the examiner's opinion that, although the Veteran had coronary artery disease, he did not have symptomatic ischemic heart disease. The Veteran was afforded a new VA examination in April 2014 to evaluate the nature and severity of the coronary artery disease. At this point, the Veteran reported that his treatment plan included taking continuous medication for the coronary artery disease. He also detailed his history of physical exercise, and stated that he walked or swam 30 to 45 minutes at a time five times weekly; however, he acknowledged that he had to stop more strenuous activities such as racquetball or running as they increased his heart rate too dramatically. The examiner again dismissed any history of congestive heart failure. The examiner did not carry out an exercise stress test during the examination, and instead relied on a self-report in determining that the Veteran's METs level was 3-5. That being said, the examiner commented that the METs level was "likely secondary to the Veteran's level of condition, not ischemic heart disease," but no further explanation for this conclusion was provided. The examiner further stated that the Veteran is not limited in activity level by fatigue but instead was limited in increased exercise due to an increase in his heart rate. VA treatment records show that the Veteran was not receiving treatment for his coronary artery disease until November 2012. Subsequent records do not show that the coronary artery disease was ever evaluated as anything other than stable. For the period from August 24, 2012 to December 20, 2013, the Board finds that the disability picture for the Veteran's coronary artery disease did not warrant an evaluation in excess of 30 percent. On the October 2012 VA examination, the Veteran was evaluated as having a METs level of 5-7, which corresponds to the currently assigned 30 percent evaluation for this period. He was evaluated as having a left ventricular ejection fraction of 74 percent, which is not sufficient for a 60 percent evaluation. VA treatment records from this period of time show that the coronary artery disease was evaluated as stable. The Board appreciates that the Veteran has asserted that his symptomatology approximated the level necessary for a 60 percent rating during the entire period of the appeal. The evidence of record, however, does not support this contention. The Veteran's reporting of his symptoms is credible. Layno v. Brown, 6 Vet. App. 465 (1994). That being said, there is no evidence in the record which indicates that he possesses the training or credentials to competently state the severity of his heart disease and determine his workload in METs for the period prior to December 20, 2013. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). There are no other diagnostic criteria under which the Veteran's service-connected coronary artery disease would be more appropriately evaluated during the period prior to December 20, 2013, as he does not have other heart conditions such as endocarditis, pericarditis, syphilitic heart disease, or hypertensive heart disease. See 38 C.F.R. § 4.104, Diagnostic Codes 7000-7004 and 7006-7123. In sum, the preponderance of the evidence is against the claim for disability rating higher than 30 percent for the Veteran's service-connected coronary artery disease during the period prior to December 20, 2013, and, as such, a higher initial rating during this period is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Prior to discussing the period from December 20, 2013 to March 1, 2015, the Board will consider the propriety of the decrease in evaluation from 60 percent to 30 percent, effective March 1, 2015. In general, where a reduction in an evaluation of a service-connected disability occurs, VA must notify the Veteran of this proposed reduction, and provide him or her with at least 60 day's time to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). In this case, the reduction of the evaluation for coronary artery disease from 60 percent to 30 percent reduced the combined disability evaluation from 60 percent to 40 percent, which mean that the requirements of 38 C.F.R. § 3.105(e) are in effect. Here, the Veteran was notified of the proposed reduction from 60 to 30 percent in an August 2014 rating decision, which was well over 60 days prior to the ultimate December 2014 rating decision that made the reduction final. Accordingly, the Board finds that the RO complied with the procedural and notice requirements for reducing the evaluation. The next issue to address is whether the reduction was proper based upon the evidence of record. The RO reduced the evaluation of the Veteran's coronary artery disease based on a finding that it was clearly and unmistakably erroneous to award the Veteran a 60 percent based on the results of the April 2014 VA examination. Specifically, the RO highlighted the fact that although the Veteran was evaluated as having a METs level of 3-5, the April 2014 VA examiner qualified that evaluation by later stating that the Veteran's restricted activity level was not attributable to fatigue and was not associated with any symptomatology of the coronary artery disease. Accordingly, the RO determined that the Veteran's disability picture more closely approximated the 30 percent evaluation that he had prior to the April 2014 VA examination. At the outset, the Board notes that the RO applied the wrong standard in determining that a reduction in the evaluation of the coronary artery disease was necessary. In order to justify the reduction, the RO needed to make a showing that there was improvement in the disability picture for the coronary artery disease as compared to the disability picture for the period prior to December 20, 2013. 38 C.F.R. § 3.344. Instead, the RO applied the clear and unmistakable standard in an attempt to show that the original increase from 30 to 60 percent was inappropriate. That being said, there is no need to delve into the procedural and analytical defects present in this case as the Board does not concur with the RO's determination that the Veteran's disability picture as reflected in the April 2014 VA examination did not warrant a 60 percent evaluation. Although the April 2014 examiner qualified their findings by stating that the Veteran's restricted activity level was not attributable to the coronary artery disease, the fact remains that they still assigned a METs level of 3-5 in evaluating the severity of the coronary artery disease. The examiner's conclusion that the lower METs score was attributable to a different cause was not adequately supported by a rationale. If the examiner had wanted to demonstrate that the Veteran's METs level as solely attributable to his coronary artery disease was greater than 3-5, they should have assigned a greater METs level. Without any specific clarifications by the examiner, the Board must give the Veteran the benefit of the doubt in considering the severity of the coronary artery disease. Thus, the disability picture for the coronary artery disease should be commensurate with the disability evaluation that corresponds to a METs level of 3-5, that is, a 60 percent evaluation. Accordingly, the Board finds that it was improper to reduce the evaluation of the coronary artery disease from 60 to 30 percent effective March 1, 2015. The 60 percent evaluation is restored for the period from March 1, 2015. The only remaining issue is to consider whether an evaluation in excess of 60 percent is warranted from December 20, 2013. As stated, the April 2014 VA examiner assigned a METs level of 3-5, which equates to the 60 percent rating currently assigned. Moreover, the most recently obtained test results show that the left ventricular ejection fraction was 74 percent, which is far from being less than 30 percent as is necessary for a 100 percent rating. Moreover, as was noted previously, while the Board has considered the Veteran's credible accounting of his symptomatology, he has not shown that he possesses the training and expertise needed to competently state the severity of his heart disease and determine his workload in METs for the period from December 20, 2013. Jandreau, 491 F.3d at 1372. Therefore, the Board concludes that a disability evaluation in excess of 60 percent for the period from December 20, 2013 is not warranted. Neither the Veteran nor the representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Earlier Effective Date and Service Connection Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. During the September 2017 hearing, the Veteran informed the undersigned that he wished to withdraw his appeal of the issues of entitlement to service connection for hypertension, neuropathy, and allergies, as well as his appeal of the issue of entitlement to an earlier effective date of the grant of service connection for coronary artery disease. The Veteran affirmed that it was his intention to withdraw his appeal of these issues on the record. There remains no allegation of errors of fact or law for appellate consideration with regards to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. ORDER A reduction of the rating for the Veteran's coronary artery disease from 60 percent to 30 percent was not proper; the 60 percent rating is restored, effective March 1, 2015, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent prior to December 20, 2013, and in excess of 60 percent therefrom, for coronary artery disease is denied. The appeal seeking entitlement to an effective date earlier than August 24, 2012, for service-connected coronary artery disease is dismissed. The appeal seeking entitlement to service connection for hypertension is dismissed. The appeal seeking entitlement to service connection for neuropathy is dismissed. The appeal seeking entitlement to service connection for allergies is dismissed. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs