Citation Nr: 18154552 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16-56 876 DATE: December 3, 2018 ORDER Restoration of a 60 percent rating for ischemic heart disease, status post stent placement (IHD), is denied. REFERRED The Board notes that the Veteran requested an increase rating for IHD on February 21, 2017. He was notified that the claim was already on appeal as part of the instant claim, and no rating decision was issued. See Other (May 2017). However, a claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the Veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Accordingly, the Veteran’s claim for an increased rating for IHD is referred to the RO for appropriate action. FINDING OF FACT 1. The Veteran was provided adequate notice and time for response as to the April 2014 proposed reduction from 60 to 30 percent for IHD in an April 2014 letter. 2. An August 2014 rating decision effectuated the proposed reduction for IHD from 60 percent to 30 percent, effective November 1, 2014. 3. At the time of the proposed reduction and effectuation of the reduction from 60 to 30 percent for IHD, the evidence showed that the Veteran’s IHD improved and that it did not manifest in more than one episode of acute congestive heart failure in the past year, METs greater than 3 but less than 5, or left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent (or worse). CONCLUSION OF LAW The criteria for restoration of a 60 percent rating for IHD are not met. 38 U.S.C. §§ 5107, 5112, 38 C.F.R. §§ 3.105(e), 3.344, 4.104, Diagnostic Codes 7005, 7006. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal of the reduced disability rating for the Veteran’s IHD does not involve a claim for benefits; thus, the duty to notify under 38 U.S.C. § 5103(a) does not apply. Instead, the notification provisions set forth in 38 C.F.R. § 3.105(e) must be followed when a rating is proposed to be reduced. Here, the notice provisions have been met. The Veteran was provided with a rating decision in April 2014 that explained why the reduction in rating was proposed. He was further advised in an April 2014 letter that he had 60 days to provide evidence or argument as to why the reduction should not be made and 30 days to request a hearing on the matter. VA treatment records and statements from the Veteran and his private physician were received. Finally, the Board notes that the RO waited the requisite number of days following the decision to make the reduction, which was not effective until November 1, 2014. The requirements of Section 3.105(e) were met, and the Veteran has not raised any arguments alleging this is not the case. Entitlement to restoration of a 60 percent rating for IHD. The Veteran contends that his heart disability has not improved and he met the criteria for a 60 percent rating at the time of the RO reduced his IHD rating from 60 to 30 percent. The Board concludes that the originating agency followed appropriate procedures set out at 38 C.F.R. § 3.105(e) to reduce the Veteran’s IHD rating and that the preponderance of the evidence is against restoration of the 60 percent rating for IHD. By way of history, as of a February 2011 rating decision, the Veteran’s IHD was rated as 60 percent disabling under DCs 7005 and 7006 for METs of five, effective January 14, 2010. In an April 2014 rating decision, the Veteran was notified of a proposal to reduce these ratings based on evidence of improvement. He submitted evidence in support of his disagreement with the proposed rating, however, it was ultimately reduced in an August 2014 rating decision. In that decision, his IHD was reduced from 60 to 30 percent, effective from November 1, 2014. 38 C.F.R. § 3.344(a) specifically indicates that ratings for disabilities subject to episodic improvement, will not be based on a single examination, and reductions should not be based on an examination that was less thorough and complete than the examination based on which the rating was assigned. However, the provisions of 38 C.F.R. § 3.344(a) do not apply where a rating has not been in effect for five years. 38 C.F.R. § 3.344(c). Because the rating at issue was effective for less than five years, this requirement does not apply, and a single examination showing improvement may provide an adequate basis for a reduction in the rating. Nonetheless, several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect, and certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Id at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is a veteran’s responsibility to show that the disability has worsened. In this way, a rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Crucially, the determination of whether the evidence reflects an actual change in the disability, and whether the relevant examination report reflects such change, must be based on a thorough and adequate examination. See Faust v. West, 13 Vet. App. 342, 349 (2000); see also Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio (i.e., at their inception)). The Veteran’s CAD is rated under DCs 7005 and 7006 pertaining to arteriosclerotic heart disease (CAD) and myocardial infraction respectively. Such provides a 30 percent disability rating when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of 30 to 50 percent. A 100 percent rating is warranted where there is chronic congestive heart failure, or workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of less than 30 percent under DC 7005. Under DC 7006, a 100 percent rating is warranted during and for three months following myocardial infraction, documented by laboratory tests. 38 C.F.R. § 4.104, DCs 7005, 7006. The Board notes that the Veteran’s IHD was initially rated at 60 percent based on METs of 5. See Rating Decision (February 2011). Specifically, the September 2010 VA examiner noted METs of 5 to 7 but did not specifically note METs greater than 5 as required by the schedule. Reasonable doubt was resolved in the Veteran’s favor and an evaluation was awarded based on METs not greater than 5. A September 2011 VA examination reflects the Veteran’s report that he danced for 1-2 hours once a week and walked on the beach twice a week for an hour each time. He denied experiencing symptoms with any level of physical activity. A September 2010 echocardiogram (ECG) showed hypertrophy with LVEF of 58 to 64 percent. The Veteran continued medication, however, he was asymptomatic and led an active life. VA and private treatment records are negative for cardiac and heart failure symptoms. An April 2014 VA examination reflects that the Veteran reported no significant changes since 2011 except for occasional chest pressure “when over doing it in the yard.”. The Veteran was asymptomatic at presentation and, again, denied experiencing symptoms with any level of physical activity. An April 2014 ECG showed an LVEF of 60 percent. The examiner included the Veteran’s reports of a previous stress test and noted an upcoming visit to his private cardiologist. A May 2014 private cardiology letter, provided by the Veteran in this matter, highlighted certain discrepancies between the April 2014 VA examination’s recorded history and findings with those of the private physician. In this regard, the private physician noted that a September 2010 ECG showed left ventricular hypertrophy and diastolic dysfunction; that the Veteran had difficulty walking on a level surface for more than a few minutes and an inability to have sexual intercourse due to shortness of breath; that there was angina or an angina equivalent at moderate exertion; that functional capacity was lower than his expected age due to his prior MI, underlying CAD, hypertensive heart disease, and prior pulmonary emboli; that non-service connected arthritis and exercise-induced hypertension caused further deconditioning of cardiac endurance, and co-morbid conditions increased risk of progression of the Veteran’s IHD; and that a stress test and ECG were scheduled for December 2014. An August 2014 rating decision reduced the Veteran’s rating to 30 percent. At the time of the decision, the evidence demonstrated the Veteran had LVEF greater than 50 percent with evidence of cardiac hypertrophy and required continuous medication. Interview-based METs showed the Veteran to be asymptomatic at all levels of physical activity. A September 2014 private echocardiogram reflects a LVEF of 53 percent. At this time, a cardiovascular stress test was conducted that showed the Veteran had achieved an estimated work load of 6.2 METs. The evidence demonstrates improvement and that the Veteran did not more nearly meet the criteria for a 60 percent rating at the time of the reduction from 60 to 30 percent. Hence, the Board finds the restoration of the 60 percent rating is not warranted. In making this determination, the Board notes that the decision is limited to the propriety of a reduction in the evaluation for IHD. Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). (“This is a rating reduction case, not a rating increase case.”) (Continued on the next page)   Accordingly, the claim for restoration of a 60 percent rating 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 C. E., Associate Counsel