Citation Nr: 18148879 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-17 482 DATE: November 8, 2018 ORDER Entitlement to a restoration of a 60 percent rating for ischemic heart disease from June 1, 2014 is denied. FINDING OF FACT The reduction of the disability evaluation for ischemic heart disease from 60 percent to 30 percent, effective June 1, 2014, was proper, as an examination disclosing improvement warranted the reduction. CONCLUSION OF LAW The criteria for restoration of a 60 percent disability rating for ischemic heart disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.13, 4.97, Diagnostic Codes (DC) 7101-7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to July 1980. See DD Form 214. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Legal Criteria and Analysis Prior to the rating reduction at issue, in June 2012, the Veteran was assigned a 60 percent rating for ischemic heart disease, effective from November 21, 2011. In a November 2013 rating decision, the RO proposed to decrease the Veteran’s rating from 60 percent to 30 percent. In November 2013, the RO sent the Veteran a letter which informed him that he would be afforded 60 days for the presentation of additional evidence to show that compensation payments should be continued at the 60 percent level and that he could request a predetermination hearing. In short, this letter provided adequate content notice for the claim decided herein. In February 2014, the RO reduced the rating for ischemic heart disease to a 30 percent evaluation, effective June 1, 2014. In a January 2015 NOD, the Veteran contended that the February 2014 rating reduction was improper, and he seeks restoration of the 30 percent rating from June 1, 2014. The Board finds that restoration of the 30 percent rating is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue (including degree of disability) shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The RO has rated the Veteran’s service-connected ischemic heart disease under 38 C.F.R. 4.104, DCs 7101-7005. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Pursuant to DC 7005, ischemic heart disease warrants a 10 percent rating for when a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, with continuous medication required. A 30 percent rating is warranted for when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; when a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, DC 7005. A 100 percent rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Propriety of Rating Reduction Pursuant to 38 C.F.R. § 3.105 (e), where a reduction in the rating 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 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 payment 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. The due process protections of 38 C.F.R. § 3.105 (e) apply in this case because the February 2014 rating decision reducing the rating at issue resulted overall in a reduction or of compensation payments. In this case, the Veteran disagrees with an February 2014 rating decision to reduce his disability rating for service-connected ischemic heart disease from 60 percent to 30 percent, effective from June 1, 2014. Again, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. As such, the RO’s reduction of the Veteran’s ischemic heart disease was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. The remaining issue is whether the reduction was proper based upon the evidence of record. For the reasons set forth below, the Board finds that the RO’s reduction from 60 percent to 30 percent for service-connected ischemic heart disease was proper. The criteria governing rating reductions for certain service-connected disabilities are found in 38 C.F.R. § 3.344. Ratings that have been continued for five years or more are governed by § 3.344(a) and (b), which provide that any rating reduction is valid only if, after a review of the entire record of examinations and the medical-industrial history, it is based upon an examination that is at least as complete as the examination that formed the basis for the original rating. See Kitchens v. Brown, 7 Vet. App. 320, 324 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). Ratings that have been continued for less than five years are governed by § 3.344(c), which provides that a reexamination disclosing improvement is sufficient to warrant a reduction in rating. As a 60 percent rating for ischemic heart disease was in effect from November 21, 2011 to May 31, 2014, which is less than five years, § 3.344(c) governs the propriety of the reduction from 60 percent to 30 percent. Evidence at the time of the reduction, which was effective June 1, 2014, shows that the Veteran had a workload of greater than five metabolic equivalents (METs), but not greater than seven METs which resulted in dyspnea, fatigue, angina, dizziness, or syncope. The Veteran also required continuous medication and his left ventricular ejection fraction was 55 percent. See March 2013 VA Examination. These findings are contemplated in the 30 percent rating criteria. Accordingly, the Board finds that the rating reduction of the Veteran’s service-connected ischemic heart disease from 60 percent to 30 percent, effective June 1, 2014, was proper. The Board notes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not also contemplate a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Yet, the Board acknowledges that although not available at the time of the February 2014 rating decision, the Veteran’s 30 percent rating was further corroborated by the findings in a March 2016 VA examination. Specifically, in this examination, the Veteran had a workload of greater than five metabolic equivalents (METs), but not greater than seven METs which resulted in dyspnea, fatigue, angina, and dizziness. His heart condition did not impact his ability to work. The Veteran also required continuous medication and his left ventricular ejection fraction was 50 to 55 percent. Therefore, by extension, a rating in excess of 30 percent is not warranted.   As the preponderance of the evidence shows the reduction was proper, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim is denied. 38 U.S.C. § 5107 (b). J. N. MOATS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel