Citation Nr: 18156842 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-45 852 DATE: December 11, 2018 ORDER The reduction of the rating for coronary artery disease (CAD) from 60 percent to 30 percent effective August 1, 2016, was proper, and the appeal as to this issue is denied. REMAND The issue of entitlement to a rating in excess of 30 percent for CAD from August 1, 2016, to include on the basis of a total disability rating based in individual unemployability (TDIU) is remanded. FINDING OF FACT 1. In an August 2013 rating decision, the Veteran was informed that his 60 percent evaluation for CAD was proposed to be reduced to a 10 percent rating. 2. In a November 2013 rating decision, the Regional Office (RO) reduced the rating for the Veteran’s CAD from 60 percent disabling to 10 percent disabling effective February 1, 2014. 3. In an August 2016 rating decision, the RO restored the rating for the Veteran’s CAD to 60 percent from February 1, 2014 to August 1, 2016; the rating action then reduced the evaluation from 60 percent disabling to 30 percent disabling effective August 1, 2016. 4. The 60 percent rating had been in effect since February 27, 2012, which was less than five years. 5. The evidence at the time of the rating reduction demonstrated that the Veteran’s CAD had improved. CONCLUSION OF LAW The reduction of the rating for CAD from 60 percent to 30 percent effective August 1, 2016, was proper. 38 U.S.C. §§ 1155, 5112, 5103, 5103A; 38 C.F.R. §§ 3.105 (e), 3.159, 3.344, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1969 to June 1971. The Veteran was previously represented by a private attorney. In June 2017, prior to certification of the case to the Board, the attorney withdrew her representation, and notified the Veteran of this. The record shows that the Veteran has not appointed another representative, and therefore is unrepresented in this appeal. The record reflects that this appeal originated from the reduction of the disability evaluation for CAD from 60 to 10 percent. Although that reduction was reversed or modified by the RO in August 2016, given that the Veteran has continued to disagree with the reduction to 30 percent and was led to believe that the latter reduction is on appeal, the Board finds that we have jurisdiction over the matter. The Board notes that the Veteran has argued during the course of this appeal that he is entitled to a TDIU based on his CAD. As this reasonably implicates a desire to pursue an increased rating above the 30 percent currently in effect for CAD, the Board finds the increased rating issue is also before the Board. 1. Propriety of the reduction of coronary artery disease from 60 percent to 30 percent, effective August 1, 2016 With respect to rating reductions, such as the one on appeal, there are specific notice requirements, found in 38 C.F.R. § 3.105 (e)-(i), which are applicable to reductions in ratings. 38 C.F.R. § 3.105 (e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued 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 expires. 38 C.F.R. § 3.105 (e). When the procedures of 38 C.F.R. § 3.105 (e) are applicable, VA must comply with those provisions rather than the notice and duty provisions in The Veterans Claims Assistance Act (VCAA), 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126. See, e.g., Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations). As noted above, the requirements under 38 C.F.R. § 3.105 (e) for reduction of the schedular disability rating from 60 percent to 30 percent for the Veteran’s service-connected CAD were properly carried out by the RO. Where the reduction in 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 given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued 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); see also 38 U.S.C. § 5112 (b)(6). The Veteran was sent a notice letter of the proposed reduction dated August 2013. Such communication fully detailed the proposal to reduce his disability evaluation and apprised him that he had 60 days to submit additional evidence to show that a reduction was not appropriate. No evidence was submitted by the Veteran. VA treatment records were associated with the file and considered, and the reduction was implemented in a November 2013. The Veteran appealed the November 2013 rating decision, and a partial grant of the appeal was implemented in an August 2016 decision reducing the Veteran’s 60 percent rating to 30 percent, effective August 1, 2016. Given the chronology of the process described above, the Board finds that the RO complied with the due process procedures required under 38 C.F.R. § 3.105 (e) for reducing the Veteran’s disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. The Board must next address whether the reduction was warranted. A Veteran’s disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. See 38 U.S.C. § 1155. Additionally, in certain rating reduction cases, the recipients of VA benefits are to be afforded greater protections. These additional protections apply in cases involving ratings that have continued for long periods of time at the same level (that is, five years or more); for ratings in effect for fewer than five years, reduction is warranted if the evidence shows improvement of the condition. See 38 C.F.R. § 3.344. 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. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations of CAD range from 10 percent to 100 percent. VA regulations provide that for application of the evaluation criteria for cardiovascular disorders: (a) Whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram (ECG), or X-ray) is present and whether or not there is a need for continuous medication must be ascertained in all cases; (b) Even if the requirement for a 10 percent (based on the need for continuous medication) or percent (based on the presence of cardiac hypertrophy or dilatation) evaluation is met, metabolic equivalents (METs) testing is required in all cases except: (1) When there is a medical contraindication, (2) When the left ventricular ejection fraction has been measured and is 50 percent or less, (3) When chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year, or (4) When a 100 percent evaluation can be assigned on another basis; and (c) If left ventricular ejection fraction (LVEF) testing is not of record, evaluate based on the alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran’s cardiovascular disability. 38 C.F.R. § 4.100. One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory decision of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. Arteriosclerotic heart disease resulting in workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required, is rated 10 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in 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; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 100 percent disabling. 38 C.F.R. § 4.104, DC 7005. In this case, the 60 percent evaluation of the Veteran’s CAD was assigned based on July 2012 examination results. Applying the examination results, the Veteran was found to have dyspnea, fatigue, and METs of 3 to 5. The Veteran was noted to take medications for his CAD. The examiner did not find congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran’s 60 percent evaluation was in effect for less than five years. As noted above, additional procedural safeguards are set forth in 38 C.F.R. § 3.344 for ratings in effect for five years or more. These protections are not for application in this case as the Veteran’s 60 percent rating was in effect for less than five years. In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). The Veteran’s 60 percent evaluation was reduced based on findings in a March 2016 VA examination. In a January 2013 VA treatment record, the Veteran’s METs was 8.60. On the March 2016 VA examination, the examiner indicated that the Veteran took medication for his CAD. The examiner found that the Veteran’s LVEF was 55 percent and METS were 5 to 7 with fatigue. Applying the March 2016 VA examination results, the Veteran had METs from 5 to 7 with LVEF at 55 percent, which is an improvement from the disability picture presented at the July 2012 examination, during which the Veteran demonstrated METs of 3 to 5. Supporting the improved disability picture are treatment reports showing the Veteran demonstrated METs in excess of 7. In considering whether improvement is demonstrated, the Board acknowledges the Veteran’s complaints of chest pains and that his heart condition is worse than 30 percent. The Veteran is competent to describe his perceived chest pain. See Layno v. Brown, 6 Vet. App. 456, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). These reports, however, are not considered sufficient to outweigh the objective testing of record. Indeed, the recent examination shows a consistent and marked improvement in the Veteran’s heart condition. The application of the METS and LVEF findings on VA examination in March 2016, as well as in treatment records since 2012, demonstrate improvement in the CAD under the ordinary conditions of life. The Board finds that the preponderance of the evidence shows the Veteran’s CAD has indeed improved. In summary, the record demonstrates that the procedural requirements for a reduction in a rating have been met as specified under the provisions of 38 C.F.R. § 3.105 (e), and the preponderance of the competent findings substantiates that the reduction in rating from 60 percent to 30 percent for CAD was warranted. The medical evidence on file at the time of the RO’s decision to reduce the rating corresponds to this determination. Therefore, the appeal for restoration of a 60 percent rating for CAD must be denied. The preponderance of the evidence is unfavorable to the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5017 (b); see also Gilbert Derwinski, 1 Vet. App. 49 (1990). REMAND Entitlement to a rating in excess of 30 percent for CAD from August 1, 2016, to include on the basis of TDIU The Veteran contends that his CAD warrants a rating higher than 30 percent, including on the basis of a TDIU. Under the circumstances, the Board finds that another examination is warranted. Accordingly, this case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination of his CAD by a physician with appropriate expertise. The electronic claims file must be made accessible to the examiner for review in connection with the examination. The examiner should conduct the examination using the appropriate DBQ form. The examiner is requested to provide an opinion as to the impact of the CAD on the Veteran’s employability. 2. Thereafter, readjudicate the matter of entitlement to a rating in excess of 30 percent for CAD from August 1, 2016, to include on the basis of a TDIU. If the decision remains averse to the Veteran, provide the Veteran with a supplemental statement of the case which includes the pertinent law and regulations pertaining to the increased rating and TDIU claim. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel