Citation Nr: 21069104 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-28 942 DATE: November 17, 2021 THE ISSUE The propriety of the reduction of coronary artery disease from 60 percent to 30 percent, effective September 2, 2014. ORDER The reduction in the rating for coronary artery disease from 60 percent to 30 percent effective September 2, 2014 was not proper, and the 60 percent disability rating is restored. FINDINGS OF FACT 1. In November 2014 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) reduced the rating for service-connected coronary artery disease from 60 percent to 30 percent, effective September 2, 2014; at the time of the reduction, the rating had been in effect for less than five years and the reduction did not result in a decreased combined disability rating. 2. The "improvement" identified in the Veteran's service-connected coronary artery disease did not actually reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in the Veteran's rating for a coronary artery from 60 percent to 30 percent, effective September 2, 2014 was not proper and the rating decision on appeal is therefore void ab initio; the prior rating is restored. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. § 4.100 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in May 2019, at which time, it erroneously remanded to obtain a new, contemporaneous VA heart examination. The Board acknowledges this was in error and will now restrict its now focus on the analysis of the propriety of the reduction at the time of the November 2014 rating decision, as discussed further below. The reduction in the rating for coronary artery disease from 60 percent to 30 percent effective September 2, 2014 was not proper, and the 60 percent disability rating is restored. Initially, because the rating reduction at issue reduced the Veteran's combined disability rating, but did not result in a reduction in the amount of compensation payable to the Veteran, the procedural requirements of 38 C.F.R. § 3.105 (e) do not apply. Turning to whether the reduction was proper, the Board notes that at the time of the reduction, effective November 1, 2019, the 60 percent rating for coronary artery disease had been in effect for a period of less than five years. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply and reexamination disclosing improvement would warrant a rating reduction. 38 C.F.R. § 3.344 (c). However, in Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, 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. Similarly, 38 C.F.R. § 4.2 establishes that "[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." Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself 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. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. The burden of proof is on the Department of Veterans Affairs (VA) to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). 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. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In considering whether a reduction was proper, 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 had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens v. Brown, supra. At issue is the propriety of the RO's decision to reduce the Veteran's rating for his coronary artery disease from 60 percent disabling to 30 percent disabling, effective September 2, 2014. To properly reduce a rating, VA must meet both procedural and substantive benchmarks. When a RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38C.F.R. §3.102. In this case, the Veteran's service-connected coronary artery disease is rated under Diagnostic Code (DC) 7005. Under DC 7005, a 10 percent rating is warranted when ischemic heart disease results in a workload of greater than 7 METs, but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. A 30 percent rating is warranted where ischemic heart disease results in a workload of greater than 5 METs but not greater than 7 METs resulting 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 assigned when a Veteran had more than one episode of congestive heart failure within the past year, or; where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A rating of 100 percent is assigned for chronic congestive heart failure, or; where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. The Veteran was afforded a VA heart examination in April 2010 which, in relevant part, recorded a left ventricle ejection fraction of 45 percent. Based on this finding, the RO in a November 2010 rating decision granted service connection for CAD and assigned an initial disability rating of 60 percent. A May 2011 VA treatment note indicated that the Veteran's left ventricular ejection fraction had reduced since January 2010. In September 2014, the Veteran reported for a new VA heart examination. The examiner indicated that the veteran required continuous medication for his heart disability. An echocardiogram found a left ventricular ejection fraction of 50-55 percent and recorded reginal wall motion abnormalities. No exercise stress test was conducted, however an interview based METs test revealed dyspnea upon exertion of >5-7 METs. The limitation in METs level was found to be due to multiple factors, including arthritic pain and reduced lung functioning due to a long history of smoking. The examiner was unable to determine the percentage of METs level limitation due solely to the heart condition. The Veteran reported that he had shortness of breath since with exertion wince his heart attack in 2009. Based on these findings, the RO reduced the Veteran's disability rating from 60 percent to 30 percent effective September 2, 2014, the date of examination. The decision did not address whether there was an improvement in the Veteran's ability to function under the ordinary conditions of life and work. The Veteran subsequently disagreed with the propriety of the reduction. The Veteran also submitted a separate claim for an increased rating for his coronary artery disease in August 2015. Based on the August 2015 claim, the Veteran was afforded a new VA heart examination in September 2015. Records cited showed the Veteran had been complaining of shortness of breath, weakness, weight loss of 40 pounds, and intractable nausea and vomiting. An interview based METs test revealed dyspnea and fatigue with on exertion of 1-3 METs. The limitation in METs level was found to be due to multiple medical conditions including the heart condition. The examiner was unable to determine the percentage of METs level limitation due solely to the heart condition. Further post-reduction treatment records, including July 2016, August 2017, and June 2021 VA heart examinations show no improvement in the Veteran's ability to function under the ordinary conditions of life and work, and clearly document the worsening nature of the Veteran's coronary artery disease, both in terms of objective measurement, and in the quality of the Veteran's life. Indeed, in a September rating the RO increased the Veteran's disability rating to 100 percent from August 17, 2015 based on the results of the September 2015 VA heart examination. Accordingly, the reduction in rating for the Veteran's coronary artery disease from 60 percent disabling to 30 percent disabling is not proper and is void ab initio. Thus, the 60 percent rating must be restored effective September 2, 2014. As such, the Board concludes that VA has not met its burden to show improvement in the Veteran's ability to function under the ordinary conditions of life and work based on improvement in his coronary artery disease. Thus, the rating reduction also did not adequately detail the reasons for the reduction, such that the Veteran would understand what evidence would be sufficient to show that compensation payments should be continued at their present level. Accordingly, the November 2014 rating reduction for coronary artery disease is void ab initio and the 60 percent rating shall be restored effective September 2, 2014. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.