Citation Nr: 18141463 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-10 157 DATE: October 10, 2018 ORDER Service connection for ischemic heart disease is restored effective December 1, 2013. FINDING OF FACT The evidence does not show that the original grant of service connection for ischemic heart disease on a presumptive basis was clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria for severance of service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 1111, 1154(b), 5109; 38 C.F.R. §§ 3.105 (d), 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1967 to June 1969, including service in the Republic of Vietnam, for which he was awarded the Purple Heart. Whether severance of service connection for ischemic heart disease was proper The Veteran asserts that VA improperly severed service connection for his ischemic heart disease. The Board agrees, and restores service connection effective December 1, 2013. Once service connection has been granted, it can only be severed where the evidence establishes that the grant was clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105 (d) is erroneous as a matter of law. Stallworth, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In Stallworth, the United States Court of Appeals for Veterans Claims (Court) recognized that 38 C.F.R. 3.105 (d) contemplates consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision. Id. at 488; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). In fact, the Court noted that the regulation specifically allows a change in medical diagnosis to serve as a basis for severance. Indeed, in Stallworth, the Court, quoting Venturella v. Gober, 10 Vet. App. 340, 343 (1997), reiterated, “[i]f the Court were to conclude that... a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record.” Id. at 488. The Stallworth Court added, “[c]onsequently, the severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous.” Id. Here, the Agency of Original Jurisdiction (AOJ) severed service connection for ischemic heart disease, effective December 1, 2013, in a rating decision dated in August 2013 (with notice issues in September 2013). The rationale for the decision to sever service connection was that a VA examination in August 2012 had not shown a diagnosis of ischemic heart disease, nor was such a diagnosis clearly reflected in the medical evidence of record. It was also noted in the earlier rating decision proposing severance that the original grant of service connection was based on an examination report from Dr. Sanfelippo dated in March 2012, which apparently included an error on the part of the doctor as to the identity of the Veteran examined. In this instance, there is no debate as to whether the Veteran has the requisite service in Vietnam, which entitles him to presumptive service connection for ischemic heart disease. Rather, the issue central to the decision to sever service connection for ischemic heart disease is whether the Veteran has a diagnosis of ischemic heart disease. The Veteran has repeatedly stated that he was examined by Dr. Sanfelippo as part of his claim for Social Security disability benefits, not as part of his VA claim, and that the examination did not include evaluation of his heart. In addition, he has denied being examined by the doctor in March 2012, pointing out that the doctor’s report was used to deny him Social Security benefits in 2011. Based on the Veteran’s statements, it is likely that the AOJ’s original decision to grant service connection included evidence of an examination of a completely different veteran who was examined by Dr. Sanfelippo in March 2012. However, this does not necessarily demonstrate that service connection is not appropriate for the Veteran. The decision to sever service connection was based at least in part on a VA examination in August 2012, which concluded that the Veteran did not have a diagnosis of ischemic heart disease. The Veteran has objected to the consideration of this document as part of the decision to sever, stating that he was not examined in August 2012, but had a sit-down discussion with a medical officer of VA who informed him that he did not have ischemic heart disease and his service connection would be severed. A review of the report in August 2012 shows that it was a review of records and medical history, which does not include any evidence of a contemporaneous examination of the Veteran, to include any record of his vital signs. It was prepared by the medical official with whom the Veteran met, but it was not an examination of the Veteran which affirmatively ruled out a current diagnosis of ischemic heart disease. Indeed, the stress test results noted in the examination were from 2011; no objective testing was actually performed at the August 2012 “examination.” For this reason, the Board will not consider it as part of the determination of whether severance of service connection was proper. Per the medical record, in October 2009 the Veteran’s EKG test shows a normal sinus rhythm without evidence of dysfunction. A stress test in July 2011 was terminated early due to shortness of breath, but did not show ischemic changes. An August 2011 EKG showed no significant reduction in exercise tolerance and the Veteran reported he was still able to play with his grandchildren. A bone scan in August 2012 showed evidence of coronary artery calcifications and aortic atherosclerotic disease. A treatment report dated in March 2017 noted a diagnosis of coronary artery disease without angina, with an onset date listed in April 2013. A follow-up note from a cardiologist in May 2017 diagnosed the Veteran as having atherosclerotic heart disease and coronary artery disease based on the bone scan showing of coronary calcifications. The Board finds that the medical evidence of record, both pre-dating the grant of service connection and post-dating its severance, is not sufficient to warrant severance of service connection for ischemic heart disease. Rather, there is evidence that the Veteran has a diagnosis of coronary artery disease or atherosclerotic heart disease, a form of ischemic heart disease. Although the private treatment records from March 2017 and May 2017 were not of record at the time of the initial rating decision granting service connection, the Court has stated that a severance decision regarding service connection focuses not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous. See Stallworth, supra. In this case, the current evidence shows that service connection is warranted for ischemic heart disease. The Board notes the evidence suggesting that the Veteran’s ischemic heart disease may not warrant the assigned disability rating; however, based on the competent and credible evidence of record, ischemic heart disease is shown. The issue of whether the currently assigned rating should be reduced is a separate matter which must be adjudicated separately. As VA has not met the high evidentiary burden of showing clear and unmistakable error in the award of service connection, the severance of service connection for ischemic heart disease effective December 1, 2013 was improper, and service connection must be restored as of that date. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel