Citation Nr: 1805810 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-30 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. The propriety of the rating reduction from 60 percent to 30 percent for coronary artery disease effective March 1, 2013. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: South Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from August 1967 to February 1971. This matter came before the Board of Veterans' Appeals (Board) from June and December 2102 decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing before the undersigned Veterans Law Judge was held at the RO in May 2017. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. A comparison of the evidence upon which a 60 percent disability rating was awarded with the evidence reviewed in connection with the rating reduction to 30 percent does not reflect any significant sustained improvement in the Veteran's service-connected coronary artery disease. 2. Throughout the period on appeal, the Veteran has met the threshold percentage requirements and has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Restoration of the 60 percent rating for coronary artery disease, effective from the effective date of the reduction, is warranted. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.105, 3.344 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reduction of Rating Regulatory Requirements Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation 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. 38 C.F.R. § 3.105(e) (2017). In a November 2011 rating decision, the RO granted service connection for coronary artery disease and assigned a 30 percent rating effective July 23, 2009, and a 60 percent rating effective June 17, 2011. In a June 2012 rating decision, the RO proposed to decrease the rating to 30 percent. In a December 2012 rating decision, the RO reduced the rating assigned for the coronary artery disease to 30 percent effective March 1, 2013. The Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. Furthermore, because the 60 percent rating had been in effect for less than 5 years, the provisions of 38 C.F.R. § 3.344 (a)(b) pertaining to stabilized ratings are not applicable. Reexaminations disclosing improvement in disabilities that have not become stabilized will warrant reduction in the rating. See 38 C.F.R. § 3.344(c) (2017). Evidentiary Requirements Certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability," and not merely a difference in the thoroughness of the examination or in descriptive terms, and "whether the examination reports reflecting such change are based upon thorough examinations." See Brown v. Brown, 5 Vet. App. 413, 420, 421 (1995). In addition, it must be determined that any improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the 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 demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The RO's primary basis for the 60 percent rating was a June 17, 2011, VA examination report that reports an estimated MET of greater than 3 but less than 6 and a September 2011 echocardiogram that revealed a left ventricular ejection fraction of 55 percent. The reduction was based on a March 2012 VA examination report that reports that the Veteran denied experiencing symptoms with any level of physical activity. In subsequent statements and VA treatment records, including an August 27, 2012, VA treatment record, the Veteran reported shortness of breath with minimal activity with exertion. An October 2012 VA treatment record indicates that an echocardiogram showed a left ventricular ejection fraction of greater than 55 percent Although the record suggests an improvement in the Veteran's condition, notably an improvement in ejection fraction and a denial of symptoms at the time of the March 2012 VA examination, the Veteran subsequently reported continued symptoms with exertion, which suggests any previous improvement was not sustained. In consideration of this information, the Board finds that there was not adequate evidence of sustained improvement in the Veteran's coronary artery disease to warrant a reduction. Accordingly, restoration of a 60 percent rating for coronary artery disease, from the effective the date of the reduction, is warranted. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran has met the minimum schedular criteria for a TDIU for the entire period of the claim. After consideration of the record and resolving all doubt in favor of the Veteran, the Board finds the service-connected disabilities are sufficient by themselves to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. The Veteran previously worked as a maintenance supervisor. The record includes evidence, including from the former employer, that the Veteran's service connected psychiatric disability resulted in occupational impairment while he was working. A February 2011 VA examiner determined the Veteran's psychiatric disability resulted in moderate to severe impairment of occupational impairment due to symptoms including aggressive behavior, difficulties getting along with others, and not being approachable. A July 2012 VA examiner reported that the Veteran's psychiatric symptoms, including persistent irritability, difficulty managing reactions to others, poor concentration, distractibility, and short-term memory loss, affected physical and sedentary employment and that "symptoms of this magnitude" precluded the Veteran from gainful employment from "most" jobs. Based on the evidence of significant/severe occupational impairment due to the psychiatric disorder, in conjunction with the impairment associated with the service-connected hearing loss and coronary artery disease, and resolving all doubt in favor of the Veteran, the Board finds the Veteran is unemployable due to his service-connected disabilities. Accordingly, a TDIU is warranted. ORDER Restoration of a rating of 60 percent for coronary artery disease, from the effective date of the reduction, is granted. A TDIU is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs