Citation Nr: 21068692 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-42 661 DATE: November 12, 2021 ORDER The reduction in the rating for ischemic heart disease from 60 percent to 10 percent effective May 1, 2014, was proper, and the appeal is denied. Entitlement to a rating higher than 10 percent for ischemic heart disease from May 1, 2014 to March 31, 2020, is denied. Entitlement to a rating higher rating than 60 percent for ischemic heart disease from March 31, 2020, is denied. FINDINGS OF FACT 1. The Veteran's ischemic heart disease substantially improved during the 4 year span between August 2010 and May 2014; the improvement during this period reflects an improvement in the Veteran's ability to function under ordinary conditions of life and work. 2. From May 1, 2014 to March 31, 2020, the Veteran's ischemic heart disease was not manifested by workload of 7 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray; or LVEF of 50 percent or less. 3. From March 31, 2020, the Veteran's ischemic heart disease was not manifested by chronic congestive heart failure, or; workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for restoration of the 60 percent rating for ischemic heart disease, effective May 1, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.104, Diagnostic Code 7006 (2020). 2. The criteria for a rating higher than 10 percent for ischemic heart disease from May 1, 2014 to March 31, 2020, have not been met. 38 § U.S.C. 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7006. 3. The criteria for a rating higher than 60 percent for ischemic heart disease from March 31, 2020, have not been met. 38 § U.S.C. 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7006. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.900(c). With respect to Veteran's prior appeal concerning entitlement to a total disability rating based on individual unemployability (TDIU), in February 2018 the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The RO ultimately issued a decision on that claim under the AMA that was not appealed to the Board. Thus, that issue is not before the Board. Rating Reduction 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, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). After completing the predetermination procedures, VA must send the veteran written notice of the final action, which must set forth the reasons for the action and the evidence upon which the action is based. Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2). 1. Whether the reduction in the rating for ischemic heart disease from 60 percent to 10 percent effective May 1, 2014, was proper The 60 percent rating for the Veteran's ischemic heart disease was assigned in a September 2011 rating decision, effective August 31, 2010, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7006. Diagnostic Code 7006 is rated under the Schedule of Ratings for the Cardiovascular System and applies to myocardial infarction. The 60 percent rating was reduced to 10 percent, effective May 1, 2014, in a February 2014 rating decision. In the present case, a January 2013 rating decision proposed to reduce the rating assigned to the Veteran's service-connected ischemic heart disease to 10 percent. The Veteran was notified of the proposed action in a February 2013 letter and was given the required 60 days to present additional evidence, before the RO implemented the rating reduction. In February 2013, the Veteran submitted a medical statement from a private clinician. The Veteran also underwent VA reexamination in January 2014. The RO then notified the Veteran of action taken in a February 2014 rating decision and of his appellate rights in a February 2014 letter. Although the Veteran contended in February 2014 that the reduction was improper because it was based on only one examination, the Board finds that VA has met the due process requirements under 38 C.F.R. § 3.105(e) and (i). The Board must now consider whether the reduction is proper. The criteria for a rating reduction are found at 38 C.F.R. § 3.344. Under 38 C.F.R. § 3.344, sections (a) and (b) are to be applied in cases involving an evaluation that has continued at the same level for five years or more; section (c) is to be applied if the RO reduced an evaluation that had been in effect for less than five years. In this case, the 60 percent evaluation for the Veteran's ischemic heart disease was in effect between August 31, 2010 and May 1, 2014, which is less than five years. Thus, only 38 C.F.R. § 3.344(c) applies. Under this regulatory provision, reexamination of a service-connected disability must show improvement in order to reduce a rating. In addition, it must be determined that any such improvement reflects an improvement in the veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). Under Diagnostic Code 7006, a 60 percent rating is assigned for a history of documented myocardial infarction 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. A 30 percent rating is provided for a history of documented myocardial infarction 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. A 10 percent rating is assigned for a history of documented myocardial infarction resulting in workload of greater than 7 METS but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. In this case, the Veteran underwent a VA examination on September 28, 2011. The examiner indicated a history of myocardial infarction in August 2007 with no episodes of congestive heart failure since that time; workload of 13.40 METs with no reported symptoms (dyspnea, fatigue, angina, dizziness or syncope), citing May 2008 diagnostic exercise testing; left ventricular ejection fraction (LVEF) of 60 percent, citing a May 2008 echocardiogram; no evidence of cardiac hypertrophy or dilatation, citing the May 2008 echocardiogram; and use of continuous medication to treat the heart condition. An ischemic heart disability benefits questionnaire (DBQ) completed by a private clinician received on September 27, 2011 indicated no episodes of congestive heart failure since 2007; workload of greater than 3 METs but less than 5 METs with fatigue reported at the lowest level of activity, citing September 2009 diagnostic exercise testing; LVEF of 50 percent, citing an August 2007 echocardiogram; no evidence of cardiac hypertrophy or dilatation, citing an August 2007 echocardiogram, April 2011 electrocardiogram (EKG) and July 2011 Holter testing; and use of continuous medication for treatment. The Veteran underwent VA reexamination in January 2013. The examiner indicated no episodes of congestive heart failure since 2007; workload of 10 METs with no reported symptoms (dyspnea, fatigue, angina, dizziness or syncope), citing May 2012 diagnostic exercise testing; LVEF of 60 percent, citing a May 2008 echocardiogram; no evidence of cardiac hypertrophy or dilatation, citing a May 2008 echocardiogram, April 2012 chest x-ray and May 2012 EKG; and use of continuous medication for treatment. A February 2013 statement from a private clinician noted a history of heart disease; daily medication to improve heart function and decrease the risk of another heart attack; episodes of fatigue, shortness of breath and chest oppression; and restricted activities and presentation of elevated blood pressure on his last physical examination. She stated that the Veteran's heart condition was stable with no further complications and improvement in his heart condition was due to the Veteran's close monitoring, following of medical recommendations and compliance with medication. The Veteran underwent VA reexamination in January 2014. The examiner indicated no episodes of congestive heart failure since 2007; workload of 10 METs with dyspnea and fatigue at the lowest level of activity, citing May 2012 diagnostic exercise testing; LVEF of 60 percent, citing the May 2008 echocardiogram; no evidence of cardiac hypertrophy or dilatation, citing the May 2008 echocardiogram, April 2013 EKG and December 2013 chest x-ray; and use of continuous medication for treatment. The examiner remarked that VA medical records show continuous follow-up medical care, a stable heart condition, no hospital admissions and no cardiac medication adjustments, reevaluation with VA cardiologists or further cardiac studies. She noted that the Veteran admits to experiencing dyspnea when climbing stairs quickly but denies symptoms when walking at a slow pace, and admits his heart pounds when he gets anxious but denies angina. The Board finds that the preponderance of the evidence supports the reduction of the Veteran's ischemic heart disease from 60 percent to 10 percent, effective May 1, 2014, under Diagnostic Code 7006. Diagnostic testing from 2010 to 2014 shows an improvement in workload METs from greater than 3 METs but less than 5 METS as noted on the September 27, 2011 private DBQ (citing September 2009 exercise testing) to 10 METs as noted by the January 2014 VA examiner (citing May 2012 exercise testing). LVEF also improved from 2010 to 2014 from 50 percent shown on an August 2007 echocardiogram (see September 27, 2011 DBQ) to 60 percent shown on May 2008 and May 2012 echocardiograms (see September 2011, January 2013, and January 2014 VA examinations); and there was no evidence of cardiac hypertrophy or dilatation at any point from 2010 to 2014. The Board points out that the September 27, 2011 private DBQ indicated that workload METs recorded on the September 2009 exercise test was 3 METs but less than 5 METs. However, in reviewing the September 2009 exercise test results, workload METs is actually recorded as 12.6 METs. While the initial 60 percent rating assigned in the September 2011 rating decision appears to have been based on LVEF of 50 percent, and not just workload METS of greater than 3 and less than 5, had workload METs been the sole criterion, a noncompensable rating would have been warranted. The Board acknowledges the Veteran's assertions that a reduced rating for his heart condition was not warranted because he relies on continuous medication for treatment, as well as the February 2013 private clinician's statement that any improvement in the Veteran's heart condition was due to his close monitoring, following of medical recommendations and medication compliance. While the medical evidence shows the continuous use of medication to treat the heart condition, in this case, the criteria for a 10 percent rating under Diagnostic Codes 7006 specifically contemplates medication. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). As such, the Board's evaluation of the Veteran's ischemic heart disease may include the ameliorative effects of his medications documented in the record. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (where the plain language of the diagnostic code contemplates the effects of medication, Jones is not applicable). Although the Veteran reported that the functional impairment caused by his heart condition worsened from 2010 to 2014, the medical evidence does not support those contentions. The workload METs level noted by the January 2011, January 2013 and January 2014 VA examiners is a level that is consistent with activities, such as climbing stairs quickly, moderate bicycling, sawing wood and jogging (6 mph). Further, although during the January 2014 VA examination, the Veteran admitted to dyspnea when climbing stairs quickly, he denied symptoms when walking at a slow pace. An August 29, 2012 VA treatment record noted the Veteran reporting he was able to perform daily activities including being able to climb 8 flights of stairs when he goes to visit his daughter. Thus, the Board does not find the Veteran's assertion of worsening from 2010 to 2014 to be persuasive in light of the medical evidence of record. For the period from August 2010 to May 2014, the medical evidence demonstrates sustained improvement in the Veteran's ability to function under ordinary conditions of life due to his ischemic heart disease. Notably, subsequent VA examination in December 2017 is not more favorable to the Veteran, as it indicates there were no episodes of congestive heart failure in the past year; workload METs of greater than 7 METs and less than 10 METs, as shown on December 2017 diagnostic exercise testing; LVEF of 55-60 percent, as shown on a April 2014 echocardio- gram; no evidence of cardiac hypertrophy or dilatation, as shown on April 2014 echocardiogram; the use of continuous medication to treat the heart condition; and no functional impact on the ability to work. In sum, the most probative evidence indicates that the reduction in the rating for the Veteran's ischemic heart disease from 60 percent to 10 percent, effective May 1, 2014, was proper, and the appeal is denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. As noted above, Diagnostic Code 7006 provides a 30 percent rating for a history of documented myocardial infarction 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. A 60 percent rating is provided for history of documented myocardial infarction 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. A 100 percent rating is provided for history of documented myocardial infarction 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. 2. Entitlement to a rating higher than 10 percent for ischemic heart disease from May 1, 2014 to March 31, 2020 3. Entitlement to a rating higher than 60 percent for ischemic heart disease from March 31, 2020 The Veteran alleges his heart disability warrants ratings higher than assigned. After reviewing the evidence, the Board finds that the preponderance of evidence is against the claim. The preponderance of the evidence is against assigning a rating higher than 10 percent for ischemic heart disease from May 1, 2014 to March 31, 2020. To merit the assignment of the next highest (30 percent) rating under Diagnostic Code 7006, the evidence must show a history of documented myocardial infarction 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. The evidence in this case from May 1, 2014 to March 31, 2020 does now show any of these manifestations. Rather, the December 2017 VA examination report indicated workload METs of greater than 7 METs but not greater than 10 METs results in shortness of breath and palpitations based on interview-based METs testing at the time of the examination. There was no evidence of cardiac hypertrophy or dilatation. Further, VA treatment records dated during this timeframe show the Veteran denied symptoms of dyspnea, fatigue, angina, dizziness, or syncope. See VA treatment in January 2017, June 2017, August 2017, February 2018, October 2018, July 2019, August 2019 and January 2020. The preponderance of the evidence is also against assigning a rating higher than 60 percent for ischemic heart disease from March 31, 2020. The evidence in this case from March 31, 2020 does not show any of manifestations which more nearly approximate a 100 percent rating. First, the October 2020 VA examination report indicated the Veteran did not have congestive heart failure. Further, for the period from March 31, 2020, METs workload level was, at worst, greater than 5 METs but not greater than 7 METs resulting in dyspnea, as indicated on the October 2020 VA examination report based on interview-based METs testing. LVEF was, at worse, 45-50 percent, as noted on the October 2020 VA examination report, citing a September 2019 echocardiogram. Thus, from March 31, 2020, there is no evidence of chronic congestive heart failure, workload METs level has always been reported as greater than 3 METs, and LVEF has always been reported as 30 percent or greater. While the October 2020 VA examiner recharacterized the diagnosis as coronary artery disease with old myocardial infarction and ischemic heart disease since 2007, she indicated that this was not a new diagnosis but merely a correction of the previous diagnosis. VA treatment records dated during the relevant timeframes show the Veteran consistently denied symptoms of dyspnea, fatigue, angina, dizziness, or syncope. Thus, a 100 percent rating for ischemic heart disease is not warranted at any point from March 31, 2020. While the Board acknowledges the Veteran's testimony that he has experienced symptoms of rapid onset fatigue, dizziness, difficulty breathing, difficulty sleeping and chest pains continuously throughout the appeal period without any improvement, the Board finds the medical evidence more probative as to the level of impairment than the lay assertions. In sum, the preponderance of the evidence is against a rating in excess of 10 percent from May 1, 2014 to March 31, 2020, and in excess of 60 percent from March 31, 2020. Thus, the appeal is denied. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.