Citation Nr: 18160156 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 16-49 502 DATE: December 27, 2018 ORDER Restoration of a 60 percent evaluation for ischemic heart disease (IHD) is denied. Entitlement to an evaluation greater than 20 percent for peripheral neuropathy (PN) of the left lower extremity (LLE) associated with diabetes mellitus type II (DM) is denied. Entitlement to an evaluation greater than 20 percent for PN of the right LE (RLE) associated with DM is denied. Entitlement to a combined evaluation greater than 50 percent beginning November 1, 2015, and greater than 60 percent beginning November 25, 2015, is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Actual improvement in service-connected IHD is demonstrated, with METs level greater than 10 and a need for continuous medication. 2. The service-connected PN of the LLE associated with DM is manifested by no more than moderate incomplete paralysis. 3. The service-connected PN of the RLE associated with DM is manifested by no more than moderate incomplete paralysis. 4. The combined evaluation of the Veteran’s service-connected conditions, effective November 1, 2015, is 50 percent, and effective November 25, 2015, is 60 percent. 5. Service-connected disabilities combining to a 60 percent disability rating render the Veteran incapable of obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for restoration of a 60 percent evaluation for IHD are not met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2018). 2. The criteria for an evaluation greater than 20 percent for PN of the LLE associated with DM is not met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2018). 3. The criteria for an evaluation greater than 20 percent for PN of the RLE associated with DM is not met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2018). 4. The criteria for a combined evaluation greater than 50 percent beginning November 1, 2015, and greater than 60 percent beginning November 25, 2015, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.25, 4.26 (2018). 5. The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy on active service from March 1962 to September 1966. This appeal arises before the Board from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York dated in August 2015 and June 2016. The August 2015 rating decision reduced the evaluation assigned the service-connected IHD from 60 to 10 percent, effective November 1, 2015, and resulting in a combined evaluation of 50 percent from November 1, 2015. The June 2016 rating decision assigned 20 percent evaluations, each, for PN of the R&LLE, effective November 25, 2015, resulting in a combined evaluation of 60 percent, effective November 25, 2015. Restoration 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; Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where a reduction in an 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 must be prepared setting forth all material facts and reasons, and the agency of original jurisdiction (AOJ) must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, 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 veteran expires. 38 C.F.R. § 3.105(e). If, however, the reduction in the evaluation of a specific disability does not result in a reduction or discontinuance in the amount of compensation payable, section 3.105(e) is not applicable. See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). In addition, where a disability rating has been in effect for five years or more, VA benefits recipients are to be afforded certain protections as set forth in 38 C.F.R. § 3.344. In such cases, where an examination indicates improvement, the rating agency must review the entire record of examinations and the medical-industrial history to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. If doubt remains, 38 C.F.R. § 3.344(b) provides that after affording due consideration to all the evidence developed, the agency will continue the rating in effect as provided for in that subsection. The provisions of 38 C.F.R. § 3.344 apply only to disabilities which are stabilized and not expected to improve. 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the AOJ’s reduction was warranted. See Brown v. Brown, 5 Vet. App. 413 (1993, Kitchens, 7 Vet. App. 320 (1995). When a former rating is higher than the evidence available at the time justified, the VA may not later reduce the rating simply because the Veteran did not actually meet the schedular criteria, unless the underlying disorder has shown improvement, or unless clear and unmistakable error is shown in the determination to assign the disability rating. A disability also may not be reduced simply because the rating criteria has changed. See 38 C.F.R. § 3.951. Entitlement to the restoration of a 60 percent evaluation for IHD effective November 1, 2015. In this case, in a January 2011 rating decision, the AOJ granted service connection for IHD, as secondary to exposure to the herbicide agent orange, and assigned a 60 percent evaluation effective June 14, 2010. In a July 2012 rating decision, the AOJ notified the Veteran that there were reasons to believe his IHD had improved, and that further examination would be scheduled to review his condition. In December 2014 rating decision, the AOJ proposed to reduce the evaluation to 10 percent. In an August 2015 rating decision, the AOJ reduced the evaluation for the service-connected IHD to 10 percent, effective November 1, 2015. As such, the 60 percent evaluation for the service-connected IHD was in effect greater than five years; however, the Veteran was clearly notified that stabilization was not reached and so the protections of 38 C.F.R. § 3.344 were not applicable. The combined evaluation did decrease from 80 to 30 percent as the result of the reduction, and hence, 38 C.F.R. § 3.105(e) applies. There is no issue as to the AOJ’s compliance with procedure. The essential dispute is whether or not improvement in the service-connected IHD actually occurred and whether 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). The Veteran argues that his heart condition has not improved. However, the evidence of record demonstrates clear improvement in the service connected IHD and the Veteran’s related functional capacities, warranting reduction in the assigned evaluation. The service-connected IHD was initially rated 60 percent disabling based on an August 2010 VA examination showing a diagnosis of IHD with onset in 2005 when the Veteran sustained a myocardial infarction, which was treated with a coronary stent. The VA examiner estimated activity level in metabolic equivalents (METs) of more than 3 up to 5 METs with shortness of breath on walking. The VA examiner reported a history of dyspnea on mild exertion, dizziness, and fatigue and explained that exercise stress testing was medically contraindicated because the Veteran had been, since 2008, unable to reach target heart rate on a treadmill test. Nuclear stress testing had been conducted instead, and results from January 2006 were reported to show a METS score of 6.1. Left ventricular dysfunction was measured at more than 50 percent, and heart size was normal by echocardiogram. The Veteran reported dyspnea on mild exertion and non-anginal chest pain. The VA examiner diagnosed IHD treated continuously with prescribed medications (metroprolol and fosinopril) and with the following occupational effects: problems with lifting and carrying, lack of stamina, and weakness or fatigue. See August 2010 VA Examination for Heart. In March 2012 the VA examiner estimated METs level at greater than 7 to 10 before experiencing symptoms of fatigue and cited a recent nuclear stress test. He noted that the Veteran worked out regularly at the YMCA and went “back and forth between the bike and the treadmill for about one hour.” He also did yard work at home and used a self-propelled mower. Continuous medication remained required for treatment of IHD, and 2011 test results were reported as showing no heart enlargement and left ventricular ejection fraction (LVEF) at 60 percent. The VA examiner found that the IHD had no impact on the Veteran’s ability to work. See March 2012 VA Examination for IHD. Based on this VA examination, as noted above, the AOJ notified the Veteran that it would review the Veteran’s heart condition for possible reduction, as it appeared it had improved. In October 2014 a VA records review examination was conducted. The VA examination was informed by an earlier October 2014 treatment entry and cardiologist’s note but did not include examination of the Veteran himself. The VA examiner observed the Veteran still required continuous medication to control his IHD. LVEF and heart size findings were reported from the 2011 clinical tests. Exercise testing was contraindicated, but no METS limitation due to cardiac factors was found. The Veteran had denied experiencing symptoms with any level of physical activity, and the VA examiner opined that the Veteran’s peripheral nerve disease and obesity were the cause of any limited METs level. See October 2014 VA Examination for Heart. The AOJ based its August 2015 rating decision reducing the evaluation assigned the IHD from 60 to 10 percent on this VA examination, which is highly consistent with the 2012 examination. The 2012 and 2014 examinations demonstrate a clear increase in the cardiac-related METs levels for the Veteran. The objective evidence shows improvement in the IHD. Further, the Veteran has reported improvement in his activity level; initially he reported shortness of breath with walking. At the examinations on which reduction was based, he reported using the treadmill and exercise bike, and performing yard work, demonstrating sustained improvement over time and the transfer of that improvement to functions of daily life under the ordinary conditions of that life. Reduction was proper, and restoration is not warranted. Increased Evaluations Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate DCs identify the various disabilities. See 38 U.S.C. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected peripheral neuropathy of the R&LLE is evaluated under DC 8520, which contemplates complete and incomplete paralysis of the sciatic nerve. A 10 percent evaluation is afforded for mild incomplete paralysis. A 20 percent evaluation is afforded for moderate incomplete paralysis. A 40 percent evaluation is afforded for moderately severe incomplete paralysis. A 60 percent evaluation is afforded for severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is afforded for complete paralysis characterized by foot dangles and dropping, no active movement possible of the muscles below the knee, flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520. Service connection for PN of the LLE and RLE as secondary to the service-connected DM was granted in a July 2012 rating decision and evaluated as 10 percent disabling, each, respectively, effective March 7, 2011. In November 2015, the Veteran filed an intent to file a claim, after which he filed a claim for TDIU in February 2016, which the AOJ treated as a claim for increase. In a June 2016 rating decision, the AOJ increased the evaluations assigned the LLE and RLE PN, each, respectively, to 20 percent effective November 25, 2015. The Veteran appealed the evaluations assigned. The Veteran and his attorney argue that his service-connected PN of the LLE and RLE are worse than evaluated. However, the medical evidence does not support these contentions. VA treatment records show treatment for PN of the lower extremities, including with prescribed medications. VA examinations conducted in 2016 and 2014 document symptoms of bilateral PN of the lower extremities including severe intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness, bilaterally. Sensation was found to be decreased to light touch/monofilament, bilaterally. Yet strength measured 5 of 5, and deep tendon reflexes (DTR) were 1+, bilaterally. The VA examiner assessed mild incomplete paralysis of the sciatic nerve, bilaterally. Both examiners noted that the service-connected PN impacted the Veteran’s ability to work in that the condition decreased the distance the Veteran can walk. See May 2016 and January 2014 VA Examinations for Diabetic Sensory-Motor PN. There are no other findings tending to show that the Veteran’s symptoms of incomplete paralysis of the sciatic nerve are more than moderate, bilaterally. The preponderance of the evidence is against a finding that the service-connected PN of the LLE associated with DM and PN of the RLE associated with DM, are more than moderate in severity, bilaterally. Accordingly, evaluations greater than 20 percent for PN of the LLE associated with DM and for PN of the RLE associated with DM are not warranted. Combined Evaluations A Veteran’s disability evaluations are not simply added up, but are instead combined through application of a series of formulas respecting the severity of the different disabilities and the interactions of the body parts and systems impacted. 38 C.F.R. §§ 4.25, 4.26. Disabilities are first listed in order of severity, with consideration given to combining and considering as a single disability conditions affecting both arms or legs. Here, the Veteran’s RLE and LLE PN are combined first. From November 1, 2015, 10 percent of a the whole person plus 10 percent of the remaining able person equals 19 percent disability (10+(90x10)=19). The bilateral factor under 38 C.F.R. § 4.26, or 10 percent of the disability, is added. 19+1.9=20.9, rounding to 21 percent. The Veteran’s disabilities on November 1, 2015, in order of severity, are then neuropathy at 21 percent, DM at 20 percent, tinnitus at 10 percent, IHD at 10 percent, and hearing loss at 0 percent. Using the table at 38 C.F.R. § 4.25, these combine to: 21  20= 37. 37 10= 43. 43  10= 49. This rounds to 50 percent. No higher combined rating is warranted as of November 1, 2015. Increased ratings were awarded for PN effective November 25, 2015. Calculations based on the increased ratings show: 20 percent of a the whole person plus 20 percent of the remaining able person equals 36 percent disability (20+(80x20)=36). The bilateral factor under 38 C.F.R. § 4.26, or 10 percent of the disability, is added. 36+3.6=39.6, rounding to 40 percent. The Veteran’s disabilities on November 25, 2015, in order of severity, are then neuropathy at 40 percent, DM at 20 percent, tinnitus at 10 percent, IHD at 10 percent, and hearing loss at 0 percent. Using the table at 38 C.F.R. § 4.25, these combine to: 40  20= 52. 52 10= 57. 57  10= 61. This rounds down to 60 percent; no higher combined rating is warranted. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU 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 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, 3.34l, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). Since November 25, 2015, the Veteran has met the schedular eligibility requirements under 38 C.F.R. § 4.16(a). As is detailed above, his multiple diabetes-related conditions combine to a 60 percent rating. 38 C.F.R. § 4.16(a). A finding of entitlement to TDIU is dependent upon consideration of the impact of a Veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. Age is not a factor. 38 C.F.R. § 4.19. The Veteran has submitted a private vocational capability evaluation, dated in December 2016, which considered an accurate disability picture, as well as a realistic and accurate occupational and educational history for the Veteran. While he has taken some college courses, and worked at the post office for many years, his work has been primarily as a physical laborer, doing maintenance work. He lacks skills transferable to a typical office environment. Further, his service-connected diabetes and neuropathy place physical limitations on him that would make a return to his former employment on anything approaching a full-time basis impossible. He had in fact started working part time before retiring. The Board finds that the veteran is effectively unemployable for VA purposes due to his service-connected disabilities. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel