Citation Nr: 21004862 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-63 562 DATE: January 28, 2021 ORDER Restoration of the evaluation for ischemic heart disease, which was reduced from 30 percent disabling to 10 percent effective February 1, 2016, is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for ischemic heart disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Whether a timely notice of disagreement was received by VA regarding the August 26, 2015 rating decision denying service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT At the time of the reduction in rating of the Veteran’s ischemic heart disease, the preponderance of the evidence of record did not reflect improvement in symptomology. CONCLUSION OF LAW The criteria for restoration of a 30 percent disability rating for the Veteran's ischemic heart disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the claims file. 1. Whether the rating reduction from 30 percent to 10 percent for the Veteran's ischemic heart disease is proper The Veteran appeals the RO’s reduction, from 30 percent to 10 percent, for his service-connected ischemic heart disease. He asserts this disability has not improved and a restoration of his 30 percent rating is warranted. To properly reduce a disability rating, VA must satisfy both procedural and substantive criteria. Procedurally, where the reduction in the rating 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. 38 C.F.R. § 3.105(e). Specifically, the Veteran must be notified at his or her latest address of record of the contemplated action, furnished detailed reasons thereof, and given 60 days to present additional evidence to show that compensation payments should be continued at their present level. Id. The Veteran must also be informed that he or she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not 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. Id. In the present case, the Veteran was afforded, via an August 2015 rating decision and accompanying notification letter, a proposed rating reduction and the opportunity for a predetermination hearing. The reduction was subsequently effectuated by the RO in a November 2015 rating decision, effective February 1, 2016. Substantively, the regulations provide that a rating at the same level for less than five years, as in the present case, may be reduced if there is a reexamination showing improvement in the disability. 38 C.F.R. § 3.344(c). However, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See e.g., Faust v. West, 13 Vet. App. 342, 349 (2000). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 also require that a reduction in rating be based upon review of the entire history of a veteran’s disability. Significantly, in a rating reduction case, the burden is on VA to show improvement, and it is not on the veteran as is the case in a typical increased rating claim. See 38 U.S.C. § 5112; 38 C.F.R. § 3.105. A rating reduction case focuses on the propriety of the reduction. 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 (1991). In the present case, the Veteran’s ischemic heart disease is rated under Diagnostic Code (DC) 7005, for arteriosclerotic heart disease. Under DC 7005, a 100 percent rating is warranted if chronic congestive heart failure is present, or; workload of 3 METs (metabolic equivalent units) or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. With 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, a 60 percent rating is available. With 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 electro-cardiogram, echocardiogram, or X-ray, a 30 percent rating is available. With workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required, a 10 percent rating is available. 38 C.F.R. § 4.104, Diagnostic Code 7005. In the present case, according to the August 2015 rating decision, the reduction was based on a single June 2015 VA examination which found the Veteran’s ischemic heart disease had decreased in severity, resulting in a need for continuous medication but with a METs level in excess of 7. The examination report notes, however, that the Veteran was not personally examined, and the examiner’s findings were thus based solely on review of the record. Additionally, the determination of the Veteran’s METs level was based on a prior interview alone, without a stress test or other clinical evaluation. In his written statements and in his July 2020 hearing testimony, the Veteran has asserted that these examination findings do not reflect an accurate picture of the impairment resulting from his ischemic heart disease, which continues, by his account, to cause him shortness of breath, fatigue, and syncope. Based on the above and affording the Veteran the full benefit of the doubt, the Board finds the evidence before the RO at the time of the November 2015 rating decision did not show an actual improvement in the Veteran’s service-connected ischemic heart disease warranting the reduction from 30 percent to 10 percent. Under these circumstances, the Board finds the RO failed to observe the applicable law and regulation in reducing the disability rating assigned for the disability at issue. As such, the Board concludes that a restoration of the 30 percent rating is proper. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent for ischemic heart disease is remanded. The Veteran seeks a disability rating in excess of 30 percent for his ischemic heart disease. He asserts this disability has worsened in severity in recent years, and an increased rating is therefore warranted. As he was most recently afforded a VA examination in 2015, over five years ago, a more recent VA examination is warranted. Where the record does not adequately reveal the current state of the claimant’s disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). 2. Entitlement to a TDIU is remanded. The Veteran has also asserted that his service-connected disabilities prevent him from obtaining employment. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for a total disability rating-whether expressly raised by a Veteran or reasonably raised by the record-is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. As the RO has not, however, considered this claim, and this issue is inextricably-intertwined with the issues being remanded herein, remand is also required for this pending claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Whether a timely notice of disagreement was received by VA regarding the August 26, 2015 rating decision denying service connection for PTSD is remanded. In an August 2015 rating decision, the Veteran was denied service connection for PTSD. He subsequently filed a notice of disagreement (NOD) regarding this determination. In an August 2017 letter, the RO stated that the Veteran’s NOD was untimely and the August 2015 denial had become final. That same month, VA received a NOD regarding the issue of the timeliness of the Veteran’s prior NOD. In a July 2020 statement, the Veteran reiterated his desire to contest the August 2017 timeliness determination. While this is an appealable issue, the RO has yet to issue a Statement of the Case to address it. Therefore, a remand is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected heart disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. If the examiner determines that contemporaneous exercise stress testing and/or an echocardiogram is not necessary or medically contraindicated, he or she should provide an explanation. A fully articulated rationale for each opinion requested must be set forth in the medical report. 2. Issue the Veteran a Statement of the Case regarding the issue of whether a timely NOD was filed in response to the August 2015 denial of service connection for PTSD. Only if this issue is subsequently perfected for appeal should it be returned to the Board for further consideration. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.