Citation Nr: 21076100 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-35 475A DATE: December 22, 2021 ORDER The rating reduction from 60 to 30 percent for coronary artery disease status post myocardial infarction with stent (CAD) was not proper; the 60 percent rating is restored, effective March 21, 2013. For the period on appeal prior to April 22, 2013, a rating higher than 60 percent for CAD is denied. Beginning April 22, 2013, a 100 percent rating for CAD is granted, subject to the laws and regulations governing the payment of monetary benefits. Beginning March 22, 2013, special monthly compensation (SMC) at the housebound rate is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Following a March 2013 VA examination, the RO reduced the disability rating for the Veteran's service-connected CAD from 60 to 30 percent under Diagnostic Codes (DCs) 7006-7005, effective March 21, 2013; such reduction did not reduce the overall compensation payable. 2. A 60 percent rating for the Veteran's CAD was in effect for a period of less than five years. 3. A permanent improvement in the service-connected CAD, to include in terms of his ability to function under the ordinary conditions of life, was not demonstrated. 4. Prior to April 22, 2013, the Veteran's CAD was manifested by a history of myocardial infarction, an estimated workload ranging from a level of physical activity greater than 3 METs but not greater than 10 METs resulting in dyspnea and fatigue, a LVEF greater than 60 percent, and continuous medication for control. 5. The Veteran suffered an acute myocardial infarction on April 22, 2013, confirmed by diagnostic testing. 6. Beginning March 22, 2013, the Veteran was in receipt of a total disability rating based on individual unemployability (TDIU) based solely on his service-connected post-traumatic stress disorder (PTSD) and his service-connected CAD was independently rated as 60 percent disabling. CONCLUSIONS OF LAW 1. The reduction in the rating assigned for CAD from 60 to 30 percent, effective March 21, 2013, was not proper; restoration of the 60 percent rating is warranted as of such date. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Codes (DCs) 7005-7006 (2021). 2. Prior to April 22, 2013, the criteria for an increased rating for CAD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.104, DC 7006-7005 (2021). 3. Beginning April 22, 2013, the criteria for a 100 percent rating for CAD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.104, DC 7006-7005 (2021). 4. Beginning March 221, 2013, the criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114(s), 5107 (2012); 38 C.F.R. § 3.350 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1970. He was the recipient of a Purple Heart Medal, among other service medals and decorations. The Veteran unfortunately died in May 2013; the appellant in this case is his surviving spouse. This matter came before the Board of Veteran's Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO) which reduced the Veteran's service-connected CAD. In April 2018, the appellant and her daughter testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In June 2018 and July 2021, the Board remanded the claim for further development. Here, substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to SMC at the housebound rate is raised by the record and has been accordingly added to the present appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Whether the rating reduction from 60 to 30 percent for coronary artery disease status post myocardial infarction with stent was proper. As noted above, the RO reduced the rating for the Veteran's service-connected CAD from 60 to 30 percent disabling, effective March 21, 2013. See April 2013 rating decision. As a general rule, VA must abide by specific procedural protections that apply when a veteran's rating is reduced. 38 C.F.R. § 3.105(e) (2016). However, in Stelzel v. Mansfield, 508 F.3d 1345, 1349 (2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the 60-day notice provision contained in 38 U.S.C. § 3012(b)(6) (which was previously the controlling statute of 38 C.F.R. § 3.105) was not required if the overall disability was not reduced. In other words, where through VA adjudication there is a reduction in rating for one service-connected disability, but the total level of payable compensation remains the same, then the due process provisions of 38 C.F.R. § 3.105(e) do not apply. See also VAOPGCPREC 71-91. In this case, the April 2013 rating decision that implemented the rating reduction did not reduce the Veteran's overall level of compensation - the Veteran had a combined disability rating of 80 percent prior to the April 2013 rating decision and after the reduction; therefore, the procedural requirements of 38 C.F.R. § 3.105(e) are inapplicable. While the procedural protections of 38 U.S.C. § 5112 and 38 C.F.R. § 3.105(e) do not apply in this case, the standards for effectuating a reduction based on improvement are applicable, as set forth in 38 C.F.R. § 3.344. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. A readjustment to VA's rating schedule shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be rated actually improved. 38 C.F.R. § 3.951(a). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, the 60 percent disability rating for the service-connected CAD was in effect from April 12, 2012, to April 29, 2013, so for less than five years. Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply. Rather, with regard to disability ratings in effect for less than five years, adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c). The RO reduced the disability rating based on the result of a March 2013 VA examination. In determining whether a reduction was proper, the Board must focus upon 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 actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. However, post-reduction evidence may not be used to justify an improper reduction. In Brown v. Brown, 5 Vet. App. 413 (1993), the U.S. Court of Appeals for Veterans Claims (Court) identified general regulatory requirements that are applicable to all rating reductions, including those that have been in effect for less than five years. Id. at 417. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and evaluation of the disability, that each disability be viewed in relation to its history. Id. 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 record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of the veteran's disability. Id. Furthermore, 38 C.F.R. § 4.13 provides that 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 v. Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In considering the propriety of a reduction in this case, a review of the rules for establishing disability ratings is appropriate. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. If there is a question as to which rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's CAD is rated under 38 C.F.R.§ 4.71a, DC 7006-7005. DC 7005 pertains to CAD, and DC 7006 pertains to myocardial infarction. Both disabilities are rated using the same criteria, except that DC 7006 allows for a total (100 percent) rating for three months following myocardial infraction. Pursuant to the rating criteria, a 10 percent rating is warranted where there is evidence that CAD resulted in a 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 30 percent rating is warranted where there is evidence of a workload of greater than 5 METs but not greater than 7 METs, with dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent rating is warranted where there is evidence of more than one episode of acute congestive heart failure in the past year; workload greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of 30 to 50 percent. 38 C.F.R. § 4.104. A 100 percent rating requires chronic congestive heart failure; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of less than 30 percent. Id. The provisions of 38 C.F.R. § 4.104 define one MET as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Note 2. Private medical records show the Veteran had an acute myocardial infarction in March 1998 and underwent stent placement. Records thereafter dating from 2001 to 2011 note that the Veteran's CAD was stable. At a June 2011 VA examination, there was no evidence of congestive heart failure, cardiac hypertrophy or cardiac dilation. The Veteran reported dyspnea and fatigue. The examiner estimated the Veteran's METs at greater than 7 but not greater than 10 METs, consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, or jogging. A July 2011 echocardiogram found the left ventricle ejection fraction (LVEF) rate was 65 percent. The Veteran was seen by the VA for a cardiac consultation in April 2012. The Veteran reported that he was able to ambulate with a walker and could walk less than one block. He reported shortness of breath and lethargy with simple tasks. He described sharp stabbing chest pain, that could occur at rest or with exertion that lasted for hours. The Veteran was on continuous medication for his cardiac disability. The impression was no evidence of ongoing cardiac ischemic symptoms. Based upon the cardiac consultation, a VA cardiologist completed a VA Disability and Benefits Questionnaire (DBQ) in April 2012 and noted a diagnosis of CAD. There was no evidence of congestive heart failure. The examiner noted evidence of cardiac hypertrophy or dilation. The examiner referenced the July 2011 LVEF of 65%. The examiner did not enter a METS score, noting that the Veteran's mobility was severely limited due to a stroke following a motor vehicle accident in September 2011. The examiner added that the Veteran had chronic kidney disease and was on hemodialysis, so left ventricular hypertrophy was a usual finding. At a September 2012 VA examination, the examiner diagnosed CAD. An interview-based METs test was conducted revealing the Veteran's complaints of dyspnea and fatigue associated with exertion of greater than 3 but not greater than 5 METs, consistent with activities such as light yard work, mowing the lawn, or brisk walking. The examiner noted that the Veteran's activities were low because of other nonservice connected health conditions. The Veteran was afforded a VA heart examination in March 2013. The DBQ noted a diagnosis of CAD. The Veteran did not have congestive heart failure, cardiac hypertrophy, or cardiac dilation. An interview based METs test was conducted revealing the Veteran's complaints of fatigue associated with exertion of greater than 5 but not greater than 7 METs, consistent with activities such as golfing, mowing the lawn, or heavy yard work. The examiner noted that the Veteran could not go for a stress test as he could not walk due to a previous stroke. The examiner noted that the estimated METs was due solely to the Veteran's ischemic heart disease and ignored his other medical problems which affected his functional status. The examiner added that the Veteran was stable with respect to his cardiac condition. The question consequently before the Board is whether the Veteran's CAD had demonstrated improvement at the time of the rating reduction. On review of all the applicable evidence, the Board finds that permanent improvement in the Veteran's CAD had not been shown to have occurred. The Veteran consistently reported experiencing fatigue. The Appellant and the Veteran's daughter testified that the Veteran's cardiac disability had not improved, and that the reduction was based solely on the estimated METs at the March 2013 examination as testing was not conducted. They also pointed out that he suffered a massive heart attack one month later. The Board finds these lay statements to be competent and credible. Finally, it cannot be determined, based on the evidence of record, that the purported improvement in the Veteran's METS actually reflected an improvement in his ability to function under the ordinary conditions of life and work in light of the Veteran's physical state and the lay statements. See Brown, 5 Vet. App. at 420-21. Although the March 2013 examiner estimated the Veteran's METs, he did not indicate how he was able to separate the Veteran's symptoms which were solely attributable to his service-connected CAD. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). The Board finds it unlikely that the Veteran's CAD materially improved in six months' time from the previous examination (i.e., from September 27, 2012 to March 21, 2013). At the very least, the evidence is in relative equipoise on the question of improvement. Accordingly, with resolution of any doubt in the Veteran's favor, the Board cannot conclude that the weight of the evidence shows a material improvement in the CAD that is reasonably certain to be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. at 413. The Veteran is therefore entitled to restoration of the 60 percent rating for the service-connected CAD disability, effective March 21, 2013. Increased Rating Claims The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to an increased rating for CAD. Based on the decision above, the Veteran is in receipt of a 60 percent evaluation from April 12, 2012. The Appellant asserts that a higher rating is warranted. Additional medical records show that the Veteran was hospitalized from March 27, 2013 to April 12, 2013, for treatment of bacterial endocarditis, staph, and MRSA. Echocardiograms conducted on April 2, 2013, and April 8, 2013, showed LVEF greater than 60 percent. The Veteran was admitted to the hospital on April 22, 2013 for complaints of chest pain. Diagnostic testing was conducted that day; a chest x-ray showed findings compatible with congestive heart failure. A coronary angiogram showed acute myocardial infarction. An echocardiogram showed LVEF of 45.1 percent. The Veteran was treated and remained in the hospital until his death on May 13, 2013 from acute myocardial infarction and ventricular fibrillation arrest. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a rating higher than 60 percent for the service-connected CAD under DC 7006-7005 is not warranted prior to April 22, 2013. Throughout the rating period, the evidence shows that the service-connected CAD was manifested by the following: a history of myocardial infarction; an estimated workload ranging from greater than 3 METs but not greater than 10 METs resulting in dyspnea and fatigue; a LVEF of 65 percent; and continuous medication for control. Because the evidence shows no chronic congestive heart failure, no workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, and no left ventricular dysfunction with an ejection fraction less than 30 percent, or acute myocardial infarction, the Board finds that the disability picture for the service-connected CAD does not more closely approximate the criteria for a rating higher than 60 percent under DC 7006-7005. The Board considered the Appellant and her daughter's testimony, that the Veteran's disability had not improved and that he subsequently suffered a myocardial infarction. However, the Veteran's disability at that time is adequately compensated by the assigned 60 percent rating as medical evidence shows a consistent history of left ventricle ejection fraction greater than 60 percent, including the echocardiograms conducted in early April 2013. To the extent the Appellant argues that the Veteran's symptomology was more severe, her statements must be weighed against the other evidence of record. Here, the examination findings of trained health care professionals, accompanied by objective cardiac testing, are of greater probative weight than the Appellant's lay assertions. In addition, the Board finds that a 100 percent rating is warranted for the Veteran's CAD beginning April 22, 2013. The medical evidence shows that the Veteran was diagnosed with an acute myocardial infarction on April 22, 2013, based on a coronary angiogram. Thus, the criteria under DC 7006 for a 100 percent rating are met. 3. Entitlement to SMC Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. Bradley v. Peake, 22 Vet. App. 280 (2008) (there could be a situation where a Veteran has a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an additional disability of 60 percent or more). SMC is payable at the housebound rate where the claimant has a single service-connected disability rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114 (s)(1); 38 C.F.R. § 3.350(i). Here, the Veteran was in receipt of a TDIU based solely on his PTSD, beginning April 12, 2012. See June 2018 Board decision. The Board notes that the Veteran was in receipt of SMC at the housebound rate from April 12, 2012 to March 21, 2013. See June 2021 Rating Decision Codesheet. As he was entitled to a TDIU that is predicated on a single disability, the TDIU meets the criteria for a single service-connected disability rated as totally disabling for 38 U.S.C. § 1114(s) purposes. In addition, the Board restores herein a separate 60 percent rating for CAD, effective March 21, 2013. As the Veteran had a single service-connected disability rated as totally disabling for 38 U.S.C. § 1114(s) purposes and a separate service-connected disability with a rating of at least 60 percent, SMC at the housebound rate is granted beginning March 22, 2013. 38 U.S.C. § 1114(s)(1). Finally, neither the Appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.