Citation Nr: 18148979 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 367 DATE: November 8, 2018 ORDER Restoration of 60 percent rating for ischemic heart disease status post surgery coronary bypass graft is denied. FINDINGS OF FACT 1. The reduction of the disability evaluation for ischemic heart disease from 60 percent to 10 percent, effective June 1, 2014, was proper, as reexamination disclosed improvement in the disability. 2. For the period beginning June 1, 2014, the Veteran’s ischemic heart disease has not been more nearly manifested by more than one episode of acute congestive heart, or; a workload of greater than 3 METs but not greater than 5 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent to warrant a 60 percent disability rating. 3. For the period beginning June 1, 2014, the Veteran’s ischemic heart disease has not been more nearly manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X ray to warrant a 30 percent disability rating. CONCLUSION OF LAW The criteria for restoration of a 60 percent disability rating for ischemic heart disease are not met. 38 U.S.C. §§ 5107(b), 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSION Whether restoration of 60 percent rating for ischemic heart disease status post surgery coronary bypass graft is warranted. The Veteran contends that restoration of a 60 percent rating for heart disease is warranted. He argues that the reduction of the disability rating for his service connected ischemic heart disease from 60 percent to 10 percent was improper because his symptoms, including atrial fibrillation, shortness of breath, and fatigue, are worse since his coronary bypass graft surgery. The Board concludes that the preponderance of the evidence is against restoration of 60 percent rating for ischemic heart disease status post surgery coronary bypass graft as the correct procedures for reduction of the evaluation were followed and because reexamination disclosed improvement in the disability. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.105(e); 4.10, 4.13, 4.104, Diagnostic Code (DC) 7005. 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). In this case, as a threshold matter, the Board finds that VA provided the required notice, gave the Veteran an appropriate period of time for response, and effectuated the reduction in accordance with applicable laws. The procedural history of the claim reflects that the RO complied with the procedures required under 38 C.F.R. § 3.105(e). Neither the Veteran nor his representative has asserted a failure by VA to comply with 38 C.F.R. § 3.105(e). To reduce an evaluation, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995). However, in Brown v. Brown, the Court determined that the provisions of 38 C.F.R. § 3.344(a) only apply where the rating to be reduced has continued for five years or more. Brown v. Brown, 5 Vet. App. 413 (1993). Nevertheless, the Court noted that 38 C.F.R. § 4.10, which provides that “[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment,” and 38 C.F.R. § 4.2, which provides that “[e]ach disability must be considered from the point of view of the veteran working or seeking work,” apply generally to all rating reductions. Brown v. Brown, 5 Vet. App. 413 (1993). The Court concluded that “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.” Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the Veteran’s 60 percent evaluation for coronary artery disease (ischemic heart disease) was awarded effective May 1, 2012, and was reduced effective June 1, 2014. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case. Instead 38 C.F.R. § 3.344(c) is applicable. The Veteran’s ischemic heart disease is rated under 38 C.F.R. § 4.104, DC 7005. Pursuant to DC 7005, ischemic heart disease warrants a 10 percent rating 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 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. 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. 38 C.F.R. § 4.104, DC 7005. A July 2012 rating decision granted the Veteran service connection for ischemic heart disease associated with herbicide exposure with a 30 percent evaluation effective September 2, 2011, based on evidence of cardiac dilation and cardiac hypertrophy on echocardiogram; and a workload of greater than 5 METs but not greater than 7 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope. Pursuant to 38 C.F.R. § 4.30, an evaluation of 100 percent was assigned, effective January 17, 2012, based on surgical treatment, coronary bypass graft, necessitating convalescence. A post convalescent evaluation of 60 percent was assigned from May 1, 2012, based on a workload of greater than 3 METs but not greater than 5 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope. A December 2012 rating decision proposed to decrease the evaluation of ischemic heart disease from 60 percent to 10 percent based on a December 2012 VA examination report that showed improvement in symptoms (a workload of greater than 5 METs but not greater than 7 METs, with symptoms not attributable to ischemic heart disease). A December 20, 2012 letter notified the Veteran of the proposed action. In a December 2012 statement disagreeing with the proposed reduction, the Veteran argued that he was more out of breath than before the surgery; that he was out of breath with the least exertion; and that his doctor continued to adjust his cardiac medication with little or no improvement. While the Board recognizes that the Veteran is competent to report the symptoms he describes, medical evidence in the record does not show that the Veteran’s current symptoms are related to his service connected ischemic heart disease, but rather are caused by non ischemic medical conditions that are not service connected. According to VA medical records from October 2009, the Veteran has had atrial fibrillation since at least 2007. A March 2013 private medical record from Central Coast Internal Medicine diagnosed bradycardia (slow heart rate) and tachycardia (rapid heart rate). Private medical records from September through December 2013 continued to show atrial fibrillation. A December 2013 VA examination report supported the December 2012 VA examination that ischemic heart disease symptoms had improved. A January 2014 VA examination report agreed with the findings of the December 2013 and December 2012 VA examinations. The examiner stated that there was no reason to disagree with the prior opinions that the METS limitations were not due to the ischemic portion of the Veteran’s heart disease. The examiner noted that the Veteran had not had any new cardiac events. Post coronary artery bypass graft treadmill tests were negative for any ischemic changes. The examiner determined the METS limitations were a result of a combination of prior tobacco use with non ischemic heart disease (atrial fibrillation, valvular disease, and non ischemic dilated cardiomyopathy). The medication, Metoprolol, used to control rate of the Veteran’s atrial fibrillation was also a very significant contributor to his shortness of breath. The examiner reviewed the treatment records from Central Coast Internal Medicine, but found those records did not show that a higher evaluation was warranted. Accordingly, in an April 2014 rating decision, the RO reduced the Veteran’s disability evaluation for ischemic heart disease from 60 to 10 percent, effective June 1, 2014, based on the medical findings of December 2012, December 2013, and January 2014 VA examination reports. An April 8, 2014 letter notified the Veteran that the RO had reduced the rating. The Veteran disagreed with the reduction in a March 2015 notice of disagreement, a July 2015 statement in support of claim, and at a July 2016 decision review officer informal hearing. In response, the Veteran was afforded another VA examination. In a July 2016 medical opinion, an examiner again determined that the Veteran’s atrial fibrillation and cardiomyopathy were not a result of ischemic heart disease. The examiner noted that the precise etiology of atrial fibrillation was not always identifiable, considering that over half of known cases did not have a clearly defined or known etiology. However, the examiner opined on likely causes of the Veteran’s atrial fibrillation including heavy alcohol consumption (the Veteran drank a case of beer a week), electrolyte imbalance, endocrine abnormalities, over the counter cold medications, heart rhythm/conduction defects, and viral infections. Treadmill tests did not show ischemia, so the weight of the medical evidence pointed to a non ischemic etiology, as had been documented in earlier examinations. The examiner noted that the Veteran’s ischemic heart disease had not progressed and that he had had an excellent surgical outcome from his coronary bypass graft. The examiner opined that atrial fibrillation and cardiomyopathy were not intertwined with ischemic heart disease, because while the ischemic heart disease had improved, the atrial fibrillation and cardiomyopathy had remained unchanged, confirming that those conditions were non ischemic in nature. The examiner also noted that the Veteran was status post pace maker since 2014, not due to ischemic heart disease, but rather due to sick sinus syndrome, a heart rhythm/conduction disorder similar to atrial fibrillation. Having carefully reviewed the evidence of record, the Board finds that restoration of the 60 percent rating from June 1, 2014, is not warranted because reexamination of the Veteran’s service connected ischemic heart disease in December 2012, December 2013, and January 2014 clearly showed improvement. For the period beginning June 1, 2014, the Veteran’s ischemic heart disease has not been manifested by more than one episode of acute congestive heart, or; a workload of greater than 3 METs but not greater than 5 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent to warrant a 60 percent disability rating. It also has not been manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X ray to warrant a 30 percent disability rating. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel