Citation Nr: 1805899 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-11 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to restoration of a 100 percent rating from October 1, 2010, to March 16, 2012, for coronary artery disease (CAD). 2. Whether the termination of special monthly compensation (SMC) based on housebound criteria, effective October 1, 2010, was proper. ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active military service from August 1965 to August 1967, and from December 1968 to February 1972. The Veteran died in August 2015. The appellant is his surviving spouse and has been properly substituted in this case. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a hearing before a member of the Board in his May 2013 substantive appeal. However, before his death in a November 2014 statement, the Veteran withdrew his request before the Board. The hearing request is therefore deemed withdrawn and there is no bar to proceeding with the appeal. FINDINGS OF FACT 1. The RO's decision to reduce the Veteran's CAD rating does not reflect consideration of the provisions of 38 C.F.R. § 3.344, particularly whether the noted improvement reflected improvement in the Veteran's ability to function in the ordinary conditions of everyday life. 2. From February 5, 2007, the Veteran met the statutory requirements for payment of SMC at the housebound rate based on a schedular 100 percent evaluation for a single service-connected disability plus additional service-connected disabilities independently ratable at 60 percent. CONCLUSIONS OF LAW 1. The reduction in rating from 100 percent to 60 percent, effective October 1, 2010, through March 16, 2012, for CAD, was not proper. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.344, Diagnostic Codes 7005-7017 (2017). 2. The criteria for restoration of SMC based on housebound criteria, effective October 1, 2010, have been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Restoration of 100 Percent Rating for CAD The appellant contends that the rating of the Veteran's CAD should not have been reduced from 100 percent to 60 percent for the period from October 1, 2010, to March 16, 2012. Specifically, she disagrees with the April 2010 VA examination report on which the reduction is based, asserting that it misrepresents the characterization of the Veteran's disability. In resolving that issue, the Board must first address whether VA followed the procedural protections for reductions in evaluations when it reduced the Veteran's CAD rating from 100 percent to 60 percent. When reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at the latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e) (2017). However, VA's General Counsel has held that 38 C.F.R. § 3.105 (e) does not apply where there is no reduction in the amount of compensation payable. It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Therefore, where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one more other disabilities, section 3.105(e) is not applicable. See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). In this case, an August 2004 rating decision granted service connection for the Veteran's CAD and assigned a 30 percent rating. In a May 2007 rating decision, the Veteran's CAD was increased from 30 percent to 100 percent, effective February 5, 2007. In an April 2010 rating decision, reduction of the Veteran's 100 percent rating for CAD to 60 percent, and termination of SMC housebound benefits were proposed. In a June 2010 rating decision, the proposed reduction of the CAD rating and termination of SMC housebound benefits were effectuated. Therefore, the procedural requirements for the reduction and termination required by 38 C.F.R. § 3.105 (e) have been met. The Board now turns to the question of whether the rating reduction for the Veteran's CAD was factually appropriate. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a). However, the above considerations are required for ratings which have continued for long periods at the same level (five years or more), and 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 (c). In this case, the Veteran's 100 percent rating for his CAD was in effect from February 5, 2007, to September 30, 2010. Since that period is less than five years, the provisions of 38 C.F.R. § 3.344 (a) and (b) regarding stabilization of disability ratings do not apply. Thus, the Board looks to 38 C.F.R. § 3.344 (c) to determine whether the reexamination on which the rating reduction was based disclosed improvement in the Veteran's CAD. The Board must first consider the March 2007 VA examination on which the Veteran's 100 percent disability rating is based. At that time, the Veteran had CAD with triple vessel obstructive disease. The Veteran had stents placed in the left anterior descending coronary artery previously in 2003, and two more placed in February 2007. He had also been very symptomatic and had recurrences of angina, shortness of breath, fatigue, and dizziness. The Veteran had a left ventricular ejection fraction of 47 percent, his estimated METs were around 3, and he had a history of congestive heart failure. The Veteran submitted medical records from March 2010 and April 2010 which indicated that he was seen at least three times in that time frame because of episodes of unresponsiveness, feelings of lightheadedness, dizziness, shaking knees, and falling episodes. The Veteran stated that those symptoms have occurred approximately 4 to 5 times. The VA treatment provider indicated that the Veteran had a syncopal event and recommended an echocardiogram. The Veteran was afforded another VA examination in April 2010 in connection with a diabetes claim. He reported fatigue and was noted to have congestive heart failure, hypertension, angina, dyspnea on mild exertion, and he was instructed to follow a special diet. The Veteran had abnormal breath sounds, an enlarged heart, and a left ventricular ejection fraction of 47 percent. His METs were around 5. The Board finds that the April 2010 VA examination is inadequate for rating purposes. First, the examiner did not address functional impairment due to frequent syncopal episodes, lightheadedness, dizziness, and fatigue. In addition, the examiner did not consider the Veteran's subjective complaints that his CAD was worsening when in fact, the Veteran's statements as well as his treatment records indicated that it was indeed worsening and resulting in fainting episodes. Regardless, based on the April 2010 examination findings, the RO reduced the Veteran's 100 percent rating for his CAD to 60 percent, as set forth in the June 2010 rating decision. The reduction took effect on October 1, 2010. As discussed above, 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. The April 2010 VA examination upon which the reduction was based is inadequate for rating purposes and does not clearly show an improvement in the Veteran's CAD. Therefore, the Board finds that the evidence of record at the time of the June 2010 rating decision did not sufficiently establish that the Veteran's service-connected CAD was no longer 100 percent disabling. Accordingly, restoration of a 100 percent disability rating for CAD from October 1, 2010, to March 16, 2012, is warranted. Restoration of SMC SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). For the period between October 1, 2010 and March 16, 2010, the Veteran was service connected for the following disabilities: CAD, rated at 100 percent; diabetes mellitus type II, rated at 60 percent May 8, 2001; below right knee amputation associated with diabetes mellitus type II, rated at 40 percent; posttraumatic stress disorder, rated at 30 percent; scars to nose, scars to chest, residual incision granuloma, and scars to chest associated with CAD; all rated as noncompensable. Based upon the above, the Veteran met the statutory requirements for the payment of SMC at the housebound rate based on one service-connected disability rated as 100 percent disabling and a separate disabilities rated at 60 percent or higher as of February 7, 2009, as he had a 100 percent rating for CAD and the additional non- disabilities ratable of 60 percent or more. SMC at the housebound rate is restored as the Veteran now meets the statutory criteria. ORDER Entitlement to a restoration of a 100 percent rating for CAD from October 1, 2010, to March 16, 2012, is granted. Entitlement to restoration of a SMC award pursuant to 38 U.S.C. § 1114 (s) is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs