Citation Nr: 18144212 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-28 413 DATE: October 24, 2018 ORDER The appeal of the issue of entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus is dismissed. The reduction in evaluation for the coronary artery disease was not proper; restoration of the 60 percent disability rating is granted, effective August 1, 2016, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective October 11, 2010, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an increased disability rating for coronary artery disease is remanded. FINDINGS OF FACT 1. On May 2, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran’s counsel that a withdrawal of the appeal of the issues of entitlement to an increased rating for type II diabetes mellitus is requested. 2. The Veteran received notice of the proposed reduction of the disability rating for coronary artery disease from 60 percent to 10 percent disabling, by way of a rating decision dated in July 2013 and a notification letter dated in July 2013; the July 2013 letter also notified him of his right to submit additional evidence and request a predetermination hearing. 3. In an April 2016 rating decision, the RO reduced the disability rating for coronary artery disease from 60 percent to 10 percent disabling, effective August 1, 2016. 4. At the time of the reduction, the 60 percent disability rating had been in effect since August 25, 2010, more than five years. 5. The evidence of record at the time of the April 2016 reduction does not demonstrate sustained and material improvement in the Veteran’s service-connected coronary artery disease and that any such improvement would be maintained under the ordinary conditions of life. 6. On October 11, 2011, the Veteran filed his claim for TDIU. 7. From October 11, 2010, to November 29, 2016, the Veteran was service-connected for type II diabetes mellitus and coronary artery disease. 8. From October 11, 2010, to November 29, 2016, these service-connected disabilities were rated 70 percent disabling combined with coronary artery disease being rated 60 percent disabling. 9. The evidence is in equipoise as to whether the Veteran’s service-connected type II diabetes mellitus and coronary artery disease rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from October 11, 2010, to November 29, 2016. 10. Since November 30, 2016, the Veteran has been service-connected for type II diabetes mellitus, coronary artery disease, and posttraumatic stress disorder (PTSD) with cannabis use disorder. 11. Since November 30, 2016, these service-connected disabilities have been rated 90 percent disabling combined with coronary artery disease being rated 60 percent disabling and PTSD with cannabis use disorder rated 70 percent disabling. 12. The weight of evidence shows that the Veteran’s service-connected type II diabetes mellitus, coronary artery disease, and PTSD rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since November 30, 2016. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The reduction in the rating assigned for the Veteran’s coronary artery disease from 60 to 10 percent effective August 1, 2016, was not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.344, 4.1, 4.2., 4.10, 4.104, Diagnostic Code 7005 (2017). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for TDIU from October 11, 2010, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1966 to June 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2013 (increased rating for type II diabetes mellitus) and April 2016 (reduction) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed his claim for TDIU on October 11, 2011. The RO considered his TDIU claim to be claims for increased ratings for coronary artery disease and type II diabetes mellitus. In the July 2013 rating decision, the RO denied an increased rating for type II diabetes mellitus, denied TDIU, and proposed to reduce the rating for coronary artery disease. The Veteran filed a notice of disagreement on the issue of an increased rating for type II diabetes mellitus. Given that the RO construed the TDIU claim as a claim for an increased rating for coronary artery disease, the Board will construe the reduction issue as not only a restoration issue but also an increased rating issue. In December 2016, the Veteran filed another formal claim for TDIU based in part on the service-connected diabetes and coronary artery disease. In a September 2017 rating decision, the RO denied the TDIU claim. In October 2017, the Veteran filed a notice of disagreement with the denial of the TDIU claim in the September 2017 rating decision. His claim for an increased rating for coronary artery disease is considered a claim for TDIU because he has asserted that he is unemployable in part due to coronary artery disease. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, his pending NOD filed in September 2017 on the TDIU is rendered moot. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider 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. In the September 2017 rating decision, the RO denied service connection for peripheral neuropathy of all four extremities and in October 2017 the Veteran filed a notice of disagreement. The Veterans Appeals Control and Locator System (VACOLS) shows that the RO acknowledged receipt of the receipt of the notice of disagreement and that the RO will issue a statement of the case. Therefore, the Board will not be taking jurisdiction of the claim pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). In November 2016, the Veteran was scheduled for a videoconference hearing before a Veterans Law Judge to be held in February 2017. In January 2017, the Veteran’s counsel withdrew the request for the Board hearing. 1. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus 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 Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeal of the issues of entitlement to an increased rating for type II diabetes mellitus and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to an increased rating for type II diabetes mellitus and it is dismissed. 2. Entitlement to restoration of a 60 percent disability rating for service-connected coronary artery disease. Governing law and regulations Ratings reductions The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a veteran’s disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings which have continued for long periods at the same level (five years or more). The United States Court of Appeals for Veterans Claims (the Court) has determined that once the five-year requirement of 38 C.F.R. § 3.344(c) has been satisfied, a reduction of the pertinent rating percentages can only be effective if the reduction complies with the provisions of 38 C.F.R. § 3.344(a), which the Court described as a four-prong test. See Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, the Court requires that adjudicators must: (1) Review the entire record of examinations and medical and industrial history to ascertain whether the recent examination or examinations on which the reduction was based were full and complete; (2) decline to use examinations which are less full and complete and those on which payments were authorized or continued; (3) nor reduce an evaluation for a disability which is subject to periodic improvement on one examination except in cases where all the evidence clearly warrants a finding of material improvement; and (4) consider whether the evidence makes it reasonably certain that any improvement found will be maintained under the ordinary conditions of life. Brown, 5 Vet. App. at 419. In a June 2011 rating decision, the RO granted service connection for coronary artery disease and assigned a 60 percent disability rating for the disability under Diagnostic Code 7005 effective August 25, 2010. Therefore, the greater protections, set forth in 38 C.F.R. § 3.344, do apply in this case because the 60 percent disability rating for that disorder was in effect for five or more years at the time of the reduction. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation 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 his 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). Analysis In this case, the RO did provide 60 days notice of the reduction of the rating. In fact, the Veteran was given over two years notice. The RO specifically made a determination that there was an improvement in the disability and that in essence there was an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. The RO relied on an April 2016 VA examination report that notes there is no evidence in the available records to support a diagnosis of ischemic heart disease. There is, however, conflicting medical evidence on the existence and severity of coronary artery disease. A March 2011 VA examination report shows a diagnosis of ischemic heart disease and a left ejection fraction calculated at 35 percent. The March 2011 VA examiner noted that the Veteran’s comorbidities influence his estimated and measured MET (metabolic equivalent) and that the left ventricular ejection fraction more accurately represented his cardiac function. A February 2012 VA examination report reflects that there is no diagnosis of ischemic heart disease. A February 2012 VA echocardiogram showed that the left ventricular ejection fraction was 55 to 60 percent. As noted above, the April 2016 VA examiner also did not diagnose ischemic heart disease. An April 2016 echocardiogram report reveals a left ventricular ejection fraction of 45 to 54 percent. The VA examiner estimated that a workload of greater than five METs but not greater than seven METs would result in dyspnea, fatigue, angina, dizziness, or syncope. That examiner added the limitation is due to multiple conditions, including the heart disability, and that it is not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The examiner identified the comorbid conditions as chronic obstructive pulmonary disease and diabetes. Diagnostic Code 7005 provides that a 10 percent disability rating is warranted for workload greater than seven METs but not greater than 10 METs would result in dyspnea, fatigue, angina, dizziness, or syncope. 38 C.F.R. § 4.104, Diagnostic Code 7005. There is, however, no evidence that the Veteran can perform a workload greater than seven METs. Diagnostic Code 7005 provides that a 60 percent disability rating is warranted for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. The Board places great weight on the April 2016 echocardiogram report revealing a left ventricular ejection fraction of 45 to 54 percent. At the time of the reduction in the assigned disability rating from 60 percent to 10 percent on August 1, 2016, the competent medical evidence, to include the April 2016 echocardiogram report, did not clearly demonstrate that a material improvement in the severity of the service-connected coronary artery disease had actually occurred and that any such improvement would be maintained under ordinary conditions of life. Accordingly, the 60 percent disability rating assigned for coronary artery disease is restored, effective from August 1, 2016. 3. Entitlement to TDIU Governing Law and Regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a veteran currently unemployed or has difficulty obtaining employment is not enough. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Analysis The Veteran filed his claim for TDIU on October 11, 2011. The RO considered his TDIU claim to be claims for increased ratings for coronary artery disease and type II diabetes mellitus. In the July 2013 rating decision, the RO denied an increased rating for type II diabetes mellitus, denied TDIU, and proposed to reduce the rating for coronary artery disease. In December 2016, the Veteran filed another formal claim for TDIU based in part on the service-connected diabetes and coronary artery disease. Though the Veteran only filed a notice of disagreement on the issue of an increased rating for type II diabetes mellitus in the July 2013 rating decision and not on the denial of TDIU in that rating decision, the Veteran’s claim for an increased rating for coronary artery disease is considered a claim for TDIU because he has asserted that he is unemployable in part due to coronary artery disease. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the TDIU claim has been pending since October 11, 2011, the date of receipt of the formal TDIU claim and the claim for an increased rating for coronary artery disease. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider 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. From October 11, 2010, to November 29, 2016, the Veteran was service-connected for type II diabetes mellitus and coronary artery disease. With the restoration of the 60 percent disability rating for coronary artery disease, these service-connected disabilities were rated 70 percent disabling combined from October 11, 2010, to November 29, 2016, with coronary artery disease being rated 60 percent disabling. Since November 30, 2016, the Veteran has been service-connected for type II diabetes mellitus, coronary artery disease, and posttraumatic stress disorder (PTSD) with cannabis use disorder. With the restoration of the 60 percent disability rating for coronary artery disease, these service-connected disabilities have been rated 90 percent disabling combined since November 30, 2016, with coronary artery disease being rated 60 percent disabling and PTSD with cannabis use disorder rated 70 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) since October 11, 2010. In addition to functional impact from the coronary artery disease, the Veteran has functional impact from the non-service-connected chronic obstructive pulmonary disease. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The April 2016 examiner stated the METs limitation is due to COPD, diabetes mellitus, and the heart disability, and that it is not possible to accurately estimate the percent of METs limitation attributable to each medical condition. In a May 2010 decision, the Social Security Administration awarded disability benefits to the Veteran effective August 2008 with the primary diagnosis being effects of musculoskeletal-connective-tissue injuries. The March 2011 VA diabetes mellitus examination report shows that there was no regulation or restriction of activities due to diabetes. The March 2011 VA heart disease examination report reveals that the Veteran can perform an estimated level of seven to 10 METs, which has been found to be consistent with activities such as carrying 60 pounds, moderate bicycling, sawing, and jogging at six miles an hour. The examiner also determined that the left ventricular ejection fraction of 35 percent more accurately represented cardiac function. In his October 2011 formal TDIU claim, the Veteran reported that he last worked as a forklift driver on August 1, 2007. He stated that he only had a ninth-grade education and that he did not have any other education or training before he became too disabled to work. In a November 2011 statement, the Veteran’s former employer reported that he worked in production and that he last worked in July 2007. The February 2012 VA echocardiogram showed that the left ventricular ejection fraction was 55 to 60 percent. The January 2016 VA diabetes mellitus examination report reflects that the Veteran did not require regulation of activities as part of medical management of his diabetes mellitus and that his diabetes mellitus did not impact his ability to work. The April 2016 VA echocardiogram report showed a left ventricular ejection fraction of 45 to 54 percent. The April 2016 VA examiner estimated that a workload of greater than five METs but not greater than seven METs would result in dyspnea, fatigue, angina, dizziness, or syncope. While the April 2016 examiner stated that the Veteran’s heart disability did not impact his ability to work, that opinion was predicated on a finding of no evidence in the available records to support a diagnosis of ischemic heart disease. The June 2016 VA diabetes mellitus examiner stated that the Veteran does not require regulation of activities as part of medical management of diabetes mellitus and that his diabetes mellitus did not impact his ability to work. A March 2017 VA mental disorders examination report reflects that the examiner indicated that the Veteran had an occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or that his symptoms were controlled with medication. The Veteran, however, did have the following symptoms: near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty adapting to stressful circumstances, including work or work-like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. In his November 2016 formal TDIU claim, the Veteran reported that he last worked on August 1, 2007, but that he became too disabled to work in July 2008. A March 2017 VA heart disease examination report reflects that a March 2017 electrocardiogram revealed an old anterior myocardial infarction and that an echocardiogram revealed a visually estimated left ventricular ejection fraction of 45 to 50 percent. An interview-based METs test revealed that METs greater than 5 but less than 7 reflected the lowest activity at which the Veteran reported dyspnea and fatigue and that this activity level is has been found to be consistent with activities such as walking one flight of stairs, golfing without a cart, moving a lawn with a push mover, and doing heavy yard work such as digging. The examiner indicated that the MET level was due solely to the heart disability. The examiner noted that the impact of the Veteran’s heart disability on his ability to work is that he must avoid exertional activities. An April 2017 VA diabetes mellitus examination report reflects that there was no regulation of activities as part of medical management of diabetes mellitus. The examiner noted that the diabetes mellitus affects the Veteran’s ability to work because he requires a prosthetic to ambulate. The examiner noted the following limitations due to the prosthetic: avoid walking on uneven ground or in poorly lit areas, operating heavy machinery, working on unprotected heights, and working in temperature extremes. The Board notes that service connection is not in effect for left leg amputation and that the RO denied the reopening of a claim of service connection for that disorder in an August 2016 rating decision. Though the Social Security Administration granted disability benefits based on orthopedic disorders, the Veteran can still be considered unemployable from performing all forms of substantially gainful employment due to service-connected disabilities too. While VA examiners stated that Veteran does not require regulation of activities as part of medical management of diabetes mellitus and while January 2016 and June 2016 VA examiners stated that the diabetes mellitus did not result in any impact on the ability to work, the April 2016 VA examiner stated that the diabetes mellitus is partially responsible for an impairment of a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. As for the coronary artery disease, the March 2017 examiner noted that the impact of the Veteran’s heart disability on his ability to work is that he must avoid exertional activities. At the time of the March 2017 VA examination, an echocardiogram revealed a visually estimated left ventricular ejection fraction of 45 to 50 percent and an interview-based METs test revealed that METs greater than five but less than seven reflected the lowest activity at which the Veteran reported dyspnea and fatigue. The Veteran had the same level of MET impairment at the April 2016 VA examination and had similar ejection fractions as far back as March 2011. Given the Veteran’s education level of only completing the ninth grade and his occupational history of manual-labor employment, the evidence is in equipoise as to whether the Veteran’s service-connected type II diabetes mellitus and coronary artery disease rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from October 11, 2010, to November 29, 2016. In addition to the above-discussed impairment from the coronary artery disease and type II diabetes mellitus, the March 2017 VA mental disorders examination report reflects that the Veteran had the following symptoms: near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty adapting to stressful circumstances, including work or work-like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. Therefore, the weight of evidence shows that the Veteran’s service-connected type II diabetes mellitus, coronary artery disease, and PTSD rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since November 30, 2016. Accordingly, entitlement to TDIU since October 11, 2010, is in order. REASONS FOR REMAND Pursuant to the December 2016 TDIU claim, the Veteran underwent a VA heart disease examination in March 2017. The RO has not issued a supplemental statement of the case addressing this new evidence. In light of the other reason for remand, the RO should obtain any additional records from the Ann Arbor VA Medical Center and Toledo VA outpatient clinic from August 2017 to the present. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his coronary artery disease and obtain any identified records. Obtain the Veteran’s VA treatment records from the Ann Arbor VA Medical Center and Toledo VA outpatient clinic for the period from August 2017 to the present. 2. Thereafter, the RO should undertake any necessary development based on the evidence obtained. 3. Thereafter, readjudicate the claim on appeal with consideration of all evidence of record. If the benefit sought in connection with the claim remains denied, the Veteran and his counsel should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel