Citation Nr: 20004871 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 16-56 837 DATE: January 22, 2020 ORDER The rating reductions for ischemic heart disease (IHD) from a 60 percent rating to a 30 percent rating effective October 1, 2012 and from a 30 percent rating to a 10 percent rating effective December 1, 2012 were improper; therefore restoration to a 60 percent rating back to the October 1, 2012 date is granted. FINDINGS OF FACT 1. In a July 2012 rating decision, the RO reduced the rating for the Veteran’s IHD from 60 percent disabling to 30 percent disabling, effective October 1, 2012. 2. In a September 2012 rating decision, the RO reduced the rating for the Veteran’s IHD from 30 percent disabling to 10 percent disabling, effective December 1, 2012 3. At the time of the July 2012 and September 2012 rating decisions, the evidence of record did not indicate improvement in the Veteran’s ability to function under the ordinary conditions of life and his symptoms as contemplated in the Diagnostic Code (DC) were comparable to the time of the initial rating decision. CONCLUSIONS OF LAW 1. The reduction of the rating for IHD from 60 percent to 30 percent, effective October 1, 2012 was improper, and the 60 percent rating is restored as of that date. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105, 4.1, 4.71a, DC 7005. 2. The reduction of the rating for IHD from 30 percent to 10 percent, effective December 1, 2012 was improper, and the 60 percent rating is restored as of that date. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105, 4.1, 4.71a, DC 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his September 2012 Notice of Disagreement (NOD), the Veteran unequivocally stated his belief that the evaluation of 60 percent is what adequately reflects his symptoms. Thus, the Board acknowledges the September 2012 NOD clearly expressed an intent to limit the appeal to a 60 percent rating. See Hamilton v. Brown, 4 Vet. App. 528, 544 (1993) (A Veteran may limit an appeal as they wish.) 1. The rating reductions for IHD from a 60 percent rating to a 30 percent rating effective October 1, 2012 and from a 30 percent rating to a 10 percent rating effective December 1, 2012 were improper; therefore, restoration to a 60 percent rating back to the October 1, 2012 date is warranted Legal Criteria In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-82. Care must be taken, however, to ensure that a change in an examiner’s evaluation reflects an actual change in the Veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that material improvement in a disability has actually occurred, and that any improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13 (2018); see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993). In this case, at the time of the 2012 reduction, the Veteran’s 60 percent rating for IHD had been in place less than five years (effective date of August 2010). Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) (protecting ratings that have been in place for five years or more) do not apply and, instead, a re-examination disclosing improvement in the disability would warrant a reduction in rating. 38 C.F.R. § 3.344(c). However, the burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420; see 38 C.F.R. § 4.1. Similarly, “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” 38 C.F.R. § 4.2. VA must also ensure that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13. Factual Background The Veteran underwent a November 2010 VA examination for his IHD. The examination revealed a metabolic equivalents of task (METs) score of 3-5, with activity resulting in dyspnea, fatigue, and angina. The examination did not reveal a left ventricular ejection fraction (LVEF) score or any indication of that DC contemplated symptom. The examiner noted the Veteran did not have congestive heart failure (CHF). There was no evidence of cardiac hypertrophy or dilatation. After the November 2010 VA examination, a February 2011 rating decision granted service connection for IHD with a rating of 60 percent. The Veteran underwent a January 2012 VA examination for his IHD. The examination revealed a METs score of 3-5, with activity resulting in dyspnea. The examination did not reveal a LVEF score or any indication of that DC contemplated symptom. The examiner noted the Veteran did not have CHF. There was no evidence of cardiac hypertrophy or dilatation (but no testing was completed at this exam). An echocardiogram (EKG) was ordered to evaluate the Veteran’s LVEF and to determine if there is any hypertrophy or dilatation. A stress test was medically contraindicated based on the Veteran’s treating physician’s assessment of his condition. This examination contained no discussion of any improvement in the Veteran’s IHD since his last VA examination. There was no questioning relating to how the Veteran’s IHD affects his ability to function under the ordinary conditions of life and work. A January 2012 VA treatment record noted the results of the EKG ordered in the above examination. The EKG revealed 60-65 percent LVEF and no left ventricle dilatation or hypertrophy. The examiner opined that the LVEF is more indicative of the Veterans current cardiac functional status than his estimated METs. The examiner further opined that it was impossible to determine METs level based solely on cardiac functional status when there are associated comorbid conditions (Veteran’s comorbid conditions per the examiner were COPD, prior tobaccoism, deconditioning, and class I obesity). The examiner provided no opinion on any improvement in the Veteran’s IHD since the original rating decision was issued. Following the January VA examinations, the RO issued a March 2012 rating decision proposing a reduction in the Veteran’s rating from 60 percent to 30 percent. A March 2012 notification letter was mailed to the Veteran at the correct address informing him that he could submit evidence within 60 days or request a personal hearing within 30 days. The RO issued a July 2012 rating decision (after the prescribed time to submit additional evidence or request a hearing) that reduced the Veteran’s rating from 60 percent to 30 percent with an effective date of October 1, 2012. Further, the rating decision proposed further reducing the Veteran’s rating from 30 percent to 10 percent. A July 2019 notification letter was mailed to the Veteran at the correct address informing him that he could submit evidence within 60 days or request a personal hearing within 30 days. The Veteran submitted a September 2012 NOD asserting that his IHD rating should not be reduced. He did not request a personal hearing. The RO issued a September 2012 rating decision (after the prescribed time to submit additional evidence or request a hearing) that further reduced the Veteran’s rating from 30 percent to 10 percent with an effective date of December 1, 2012. The Veteran underwent an October 2016 VA examination for his IHD. The examination revealed a METs score of 1-3, with activity resulting in fatigue. The examination revealed a LVEF score of 60-65% (based on the score from January 2012 EKG). The examiner noted the Veteran did not have CHF nor left ventricle dilatation or hypertrophy. The examiner opined that the LVEF score reflected the Veteran’s current cardiac status rather than the estimated METs because the METs were influenced by the Veteran’s other co-morbid conditions, specifically recent anemia. No opinion was offered regarding any improvement of the Veteran’s IHD from the initial rating decision. Analysis At the outset, the Board points out that 38 C.F.R. § 3.105(e) sets forth certain procedural requirements for reductions in disability compensation ratings. Generally, a reduction is void ab initio (invalid from the start) if the RO reduces a Veteran’s disability rating without following these requirements, see Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). The RO has substantially complied with the notice requirements. However, here, the evidence does not show that the Veteran’s IHD abated such that improvement in the ability to function under ordinary conditions of life and work were realized at the time of the reduction. The January 2012 examinations failed to demonstrate a material improvement in the Veteran’s IHD such that would warrant a reduction in his rating. In fact, much of the focus of those examinations was whether METs or LVEF was a more reliable test to assess the Veteran’s IHD. Additionally, when compared to the November 2010 VA examination, the Veteran’s IHD condition appears unchanged because the symptoms and METs scores are very similar. Upon review of this evidence, the Board finds that, at that the time of the reduction, it is clear that the evidence did not show actual, ascertainable material improvement of the Veteran’s IHD that reflected an improvement in his ability to function under the ordinary conditions of life. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the reductions of the rating for IHD were not proper. As such, the 60 percent rating for IHD is restored, effective October 1, 2012, the date of the reduction. Additionally, as the reduction from 60 percent to 30 percent and from 30 percent to 10 percent are both based on the same evidence, neither reduction was proper. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.