Citation Nr: 21069306
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 17-04 774A
DATE: November 18, 2021

ORDER

The reduction of the disability rating of the Veteran's coronary artery disease (CAD), status post coronary artery bypass grafting (CABG), from 60 percent to 30 percent, effective April 1, 2015 was proper.

Entitlement to a rating in excess of 60 percent prior to April 1, 2015 for CAD status post CABG, and a rating in excess of 30 percent thereafter is denied.

Entitlement to an effective date of May 2, 2013 for the grant of a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an effective date of May 2, 2013 for the grant of Dependents' Educational Assistance (DEA) is granted.

FINDINGS OF FACT

1. A September 2017 rating decision reduced the evaluation of the Veteran's CAD status post CABG from 60 percent to 30 percent, effective April 1, 2015; the 60 percent rating was in effect for less than five years and the reduction was based on a full review of the medical evidence.

2. The medical evidence never supported a rating of 60 percent for the Veteran's CAD status post CABG alone, instead findings of cardiac hypertrophy and dilation, as well as left ventricular ejection fraction (LVEF) of 55, are consistent with a 30 percent rating.

3. The Veteran first met the schedular requirements for a TDIU on May 2, 2013; resolving reasonable doubt in favor of the Veteran, he was unable to follow or secure substantially gainful employment from that date.

4. The Veteran first met the requirements for DEA on May 2, 2013.

CONCLUSIONS OF LAW

1. The reduction of the disability rating of the Veteran's CAD, status post CABG, from 60 percent to 30 percent, effective April 1, 2015 was proper. 38 U.S.C. §§ 1110, 1155, 51077 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.104, Diagnostic Code (DC) 7005 (2019).

2. The criteria for a rating in excess of 60 percent prior to April 1, 2015 for CAD status post CABG, and a rating in excess of 30 percent thereafter have not been met. 38 U.S.C. §§ 1110, 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.104, DC 7005 (2019).

3. The criteria for an effective date of May 2, 2013 for the grant of a TDIU have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2019).

4. The criteria for an effective date of May 2, 2013 for the grant of DEA have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.807 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1968 to June 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2015 and January 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board issued two prior remands on these claims in March 2019 and September 2019.

I. Rating Reduction

Rating Disabilities are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The regulations pertaining to the reduction of a disability rating are contained in 38 C.F.R. § 3.344(a). They provide that rating agencies will handle cases affected by changes of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed 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. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a).

However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c).

Under 38 C.F.R. § 3.105(e), when a reduction in 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e).

In addition, rating reductions must be based on improvements in a disability that reflect an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420 (1993). A rating reduction must also be based on adequate examinations and opinions. Tucker v. Derwinski, 2 Vet. App. 201 (1992).

1. The reduction of the disability rating of the Veteran's CAD, status post CABG, from 60 percent to 30 percent, effective April 1, 2015 was proper.

2. Entitlement to a rating in excess of 60 percent prior to April 1, 2015 for CAD status post CABG, and a rating in excess of 30 percent thereafter.

The Veteran initially filed an informal claim for service connection for heart conditions on May 2, 2013. He subsequently filed a formal application and provided an ischemic heart disease (IHD) disability benefits questionnaire (DBQ) from his VA physician, Dr. H.Y., dated February 2014. Dr. H.Y. listed diagnoses of CAD, mitral valve disease, hypertension (HTN), carotid artery disease, hyperlipidemia, dyspnea, and congestive heart failure. He indicated that the Veteran required continuous medication for his diagnosed conditions and that he underwent coronary bypass surgery in 1988. With regard to cardiac functional assessment, Dr. H.Y. indicated that the Veteran could not ambulate on the treadmill therefore a diagnostic exercise test had not been completed. However, Dr. H.Y. indicated that the Veteran reported symptoms of dyspnea and fatigue at his lowest levels of activity and his METs level was 1-3. Evidence of cardiac hypertrophy or dilatation was also noted, with a left ventricular ejection fraction (LVEF) of >65 percent based on January 2014 testing. With regard to functional impairment, Dr. H.Y. indicated that the Veteran's ischemic heart disease impacted his ability to work and under remarks wrote "The patient has severe mitral valve insufficiency and is extremely symptomatic with dyspnea and chest pain he has had two aborted surgery attempts for mitral valve surgery due to respiratory decompensation."

The Veteran was given a VA examination for his CAD in August 2014. Here, the examiner diagnosed CAD with a CABG in 1988, and valvular heart disease from 2011. The examiner indicated that only the Veteran's CAD qualified within the generally accepted medical definition of ischemic heart disease, and that his CAD was due to agent orange exposure. The examiner noted that the Veteran required continuous medication to control his heart condition, but that he did not have congestive heart failure. The examiner noted evidence of cardiac hypertrophy and cardiac dilatation. The Veteran's LVEF was again noted to be 65 percent based on January 2014 testing. In an interview-based METs test, the Veteran reported symptoms of dyspnea, fatigue, and angina, and the examiner estimated his METs level to be >3-5. The examiner indicated that this METs level was due solely to the Veteran's heart conditions, rather than any non-cardiac medical conditions. With regard to functional impact the examiner indicated that the Veteran "avoids physical and stressful labor as it aggravates cardiac symptoms."

The RO issued a September 2014 rating decision granting service connection for ischemic heart disease (a form of CAD) with an evaluation of 30 percent, effective May 2, 2013, the date of the Veteran's initial informal claim. This rating was based on evidence of cardiac dilatation and cardiac hypertrophy. The RO noted, however, that "The current evaluation is a preliminary determination that is pending the clarification of VA examination findings in compliance with the Veterans Claims Assistance Act of 2000 (VCAA)." Shortly thereafter, in an October 2014 rating decision, the RO increased the Veteran's CAD rating to 60 percent based on a workload of greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope.

Also in October 2014, the Veteran submitted a cardiology note indicating that he was no longer able to work due to his history of CAD, severe mitral valve insufficiency, HTN, hyperlipidemia, asthma, and spinal stenosis. His cardiology nurse practitioner, K.S. wrote "The patient will require further surgery for his mitral valve which will need to be completed at the Cleveland Clinic because of his history of asthma and multiple allergies and hypersensitivities." The Veteran also submitted an updated ischemic heart disease DBQ dated October 2014 from the same nurse practitioner. Here, K.S. indicated diagnoses of CAD, CABG, and MVD all from 1988. She noted that the Veteran requires continuous medication for his heart conditions, but that he does not have congestive heart failure. K.S. noted that the Veteran reported dyspnea, fatigue, angina, and dizziness at the lowest level of activity, and she found his METs level to be 1-3. She also noted evidence of cardiac hypertrophy and dilatation. She opined that the Veteran's ischemic heart disease impacts his ability to work and wrote "The pt. is unable to walk more than 50' before having to sit and rest due to additional asthma dx and severe hypersensitivities he will need mitral valve replaced at Cleveland Clinic."

In November 2014, the RO requested a VA examiner "review the Veteran's entire VA records and claim folder and render an opinion as to whether the Veteran's diagnosis of mitral valve disease is considered to be IHD. If the mitral valve disease is not IHD, please provide symptoms and METs specific to the IHD/CAD diagnosis. If you cannot separate the Veteran METs, please advise which testing more accurately depicts the Veteran CAD, the 65% LVEF or the METs of 3 to 5." In response to this request a November 2014 opinion was provided, indicating that the Veteran's severe mitral valve insufficiency was not caused by his CAD. Specifically, the examiner wrote "The pt was dx with CAD and had single vessel bypass graft in 1988. Thus, DX CAD. The patient was dx with severe mitral valve insufficiency thus has chronic issues of regurgitation throughout the entire systolic squeezing of the left ventricle. This can cause SOB and chest pain. The pain from this valvular insufficiency is not caused by CAD but by the valve itself. The METs ranges noted by his cardiologist were determined by his assessment of the pts activity restrictions even though the EF was 65% which is normal since the issue is not in the ventricle but due to the regurgitation from the ventricle into the left atrium. Since the METs ranges were provided by the pts cardiologist, who knows the pts activity level the best, I agree that the METs range is most likely in the 1-3 range. It is impossible to ascertain the METs level from the CAD vs the mitral valve disease since both are causing heart issues at the same time. To attempt to do so would be just speculation on the part of this writer. The EF of 65% is most likely the best determinant of the pt CAD status at this time."

Based on this opinion, the RO issued a November 2014 rating decision proposing to decrease the Veteran's CAD status post CABG evaluation from 60 percent to 30 percent. In this rating decision, the RO notes that the "VA rating decision dated September 30, 2014 had incidentally included the symptoms of your non-ischemic heart disease, diagnosed as mitral valve disease, with your service connected coronary artery disease. Please note that mitral valve heart disease is not a form of ischemic heart disease and cannot be used to evaluation [sic] an ischemic heart disease condition." The Board notes that the RO continued to explain the differences in conditions, the relevant evidence, and the reason for the proposed decreased evaluation in this rating decision. Moreover, the RO sent a letter to the Veteran notifying him of the proposed decreased and indicating that he had 60 days to submit additional evidence showing why the change should not occur. This letter further noted that if additional evidence was not received within 60 days, the RO would move forward with reducing the evaluation.

In response to this letter, the Veteran submitted copies of the October 2014 cardiology note and IHD DBQ, which were already of record. The Veteran also provided another copy of his application for a TDIU. As no new evidence was provided by the Veteran, the RO issued a January 2015 rating decision decreasing the Veteran's CAD status post CABG rating from 60 percent to 30 percent, effective April 1, 2015. The Veteran subsequently appealed this reduction and his CAD evaluation up to the Board.

The Board finds that the rate reduction was proper. A review of the medical evidence confirmed that the Veteran's non-service-connected heart condition was being considered for evaluation purposes. Following a complete review of the record a medical opinion was obtained explaining the differences between the two heart conditions and providing an estimate as to the impairment caused only by the Veteran's service-connected CAD. The Board finds this opinion was adequate and supported by a sufficient rationale, consistent with the evidence of record. Moreover, as noted above, when a rate reduction would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction and all material facts must be provided to the Veteran, allowing him 60 days to respond. The RO completed the required steps for a rate reduction under 38 C.F.R. § 3.105(e). As no additional evidence was submitted the final rating action was appropriately taken, and the Veteran's award was reduced effective the last day of the month in which a 60-day period from the date of notice to the Veteran of the final rating action expired. Of note, in the September 2021 representative brief, the Veteran's representative did not argue or contend that this rate reduction was improper.  Accordingly, the reduction of the disability rating of the Veteran's CAD, status post CABG, from 60 percent to 30 percent, effective April 1, 2015 was proper.

Increased Rating Claim

Turning to the Veteran's increased rating claim, the evidence does not support a rating in excess of 30 percent for the Veteran's CAD status post CABG. None of the evidence discussed above supports a finding that the Veteran's CAD status post CABG, alone, had caused 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent as required for the next higher rating of 60 percent under DC 7005. 

The Veteran was given another VA examination for his CAD in January 2017. Here, the examiner found no congestive heart failure, but did note evidence of cardiac dilatation. In an interview-based METs test the Veteran reported dyspnea, fatigue, angina, and dizziness and the examiner estimated a METs level of >3-5. However, the examiner explained that this METs level was found due to multiple heart conditions and it was not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The examiner also noted that the Veteran suffered from asthma, which he felt also attributed to his symptoms. With regard to diagnostic tests, the examiner noted that a February 2016 echocardiogram showed LVEF of >55%.

Treatment records show more recent testing in May 2019 indicated the Veteran's LVEF to be 60%. Moreover, October 2019 treatment records list the Veteran's LVEF to be normal. As this is the most accurate determination of the Veteran's CAD status, the Board finds that the evidence does not support a rating in excess of 30 percent. Accordingly, entitlement to a rating in excess of 60 percent prior to April 1, 2015 for CAD status post CABG, and a rating in excess of 30 percent thereafter is denied.

II. Effective Date and TDIU

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 

TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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, 3.341, 4.16(a).

3. Entitlement to an effective date of May 2, 2013 for the grant of a TDIU.

The Veteran contends that he should be granted an effective date of May 2, 2013 for his TDIU because this is the date he originally met the schedular requirement for such. The Board notes that on May 2, 2013, the Veteran was service-connected for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), evaluated at 50 percent, and CAD status post CABG, evaluated at 30 percent, for a total combined rating of 70 percent. As the Veteran had two or more disabilities with at least one rated at 40 percent and a combined rating of 70 percent or more, the Board finds that he did meet the schedular requirement for a TDIU beginning May 2, 2013. 

The Veteran was originally granted a TDIU in a January 2016 rating decision, effective March 18, 2014, the same date he was granted service connection for PTSD with MDD. Following a Board decision granting an earlier effective date of May 2, 2013 for the Veteran's PTSD with MDD, the RO issued a June 2020 rating decision effectuating such. However, the claim for an earlier effective date for a TDIU remained pending as it was inextricability intertwined with the other issues on appeal. 

The Board notes that on his original application for a TDIU the Veteran indicated that he became too disabled to work in September 2012, which was also when he last worked. A request for employment information showed that the Veteran's last date of employment was August 31, 2012 and that he was not working due to "service retirement". In the January 2017 rating decision granting a TDIU, the RO found "The medical evidence shows that the combined effects of your service-connected disabilities (post-traumatic stress disorder with major depressive disorder, coronary artery disease, and diabetes mellitus type II) result in your inability to secure and maintain gainful employment. You have not been gainfully employed since 2012." Specifically, regarding the grant of service connection for PTSD with MDD in the same rating decision, the RO wrote "A review of your VA treatment records and results from your VA examinations shows that although you were not diagnosed with an Axis I psychiatric condition until approximately September 2015, your complaints have remained consistent since prior to that date. It is reasonable to conclude that your symptoms have been present since the date we received your claim. Any reasonable doubt is resolved in your favor with regard to the effective date and evaluation assigned for this disability." The Board finds the same is true with regard to the grant of a TDIU. It is reasonable to conclude that the combined effects of the Veteran's service-connected conditions have rendered him unable to work since May 2, 2013, the date he first met the schedular requirement for a TDIU. Accordingly, entitlement to an effective date of May 2, 2013 for the grant of a TDIU is granted.

4. Entitlement to an effective date of May 2, 2013 for the grant of DEA.

Eligibility to DEA is warranted for a Veteran who has a permanent and total service-connected disability. 38 C.F.R. § 3.807(a)(2). The RO previously granted DEA based on the effective date that the Veteran's TDIU was granted. As the effective date of the Veteran's TDIU has changed, his basic eligibility for DEA should also be granted back to the date he was granted a TDIU. Accordingly, entitlement to an effective date of May 2, 2013 for the grant of DEA is granted.

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Ruiz, 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.