Citation Nr: A21020675 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 210413-152546 DATE: December 30, 2021 ORDER Restoration of the prior 30 percent rating for ischemic heart disease is granted. FINDING OF FACT The November 2018 and September 2020 VA examinations were less full and complete than the November 2012 VA examination on which the prior 30 percent rating was based. CONCLUSION OF LAW The rating reduction from 30 percent to 10 percent for ischemic heart disease, effective May 1, 2021, was improper. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to October 1969. The agency of original jurisdiction (AOJ) issued the rating decision on appeal in February 2021. In April 2021, he appealed to the Board of Veterans' Appeals (Board) under the modernized review system, also known as the Appeals Modernization Act. The Veteran requested a hearing with a Veterans Law Judge. He testified before the undersigned at a virtual hearing in September 2021. A copy of the transcript is in the claims file. Restoration of a Prior Rating The February 2021 rating decision reduced the Veteran's disability rating for ischemic heart disease from 30 percent to 10 percent, effective May 1, 2021. He contends his disability has worsened, not improved, over time. He also contends the examinations he received prior to the reduction were inadequate. After careful review, the Board finds that the rating reduction was improper. The prior 30 percent rating is therefore restored. The Department of Veterans Affairs (VA) must observe certain procedural and substantive requirements before reducing or discontinuing compensation payments for service-connected disabilities. Otherwise, the rating reduction will be considered "void ab initio" and the prior rating will be restored. Greyzck v. West, 12 Vet. App. 288, 292 (1999). First, VA must first prepare a rating decision proposing the reduction, which sets forth all material facts and reasons. 38 C.F.R. § 3.105(e). VA must then notify the claimant of the proposal and allow them 60 days to present evidence to show that compensation payments should continue at their present level. Id. The claimant must also be informed of their right to request a predetermination hearing within 30 days from the date of notice of the proposed reduction. Id. § 3.105(i). Where a rating is continuous and stable for five years or more, VA may not reduce the rating unless the examination upon which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. Id. § 3.344. A rating that has been in effect for more than five years will not be reduced based on any one examination, except in instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Regardless of how long the rating was in effect, VA must also determine: (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough and adequate examinations; and (3) whether any improvement actually reflects an improvement in the claimant's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014). In this case, the record shows that VA complied with the applicable procedural requirements. The AOJ issued a proposed rating reduction setting out the material facts and reasons in September 2020. The Veteran received notice of the proposal and requested a predetermination hearing in October 2020. He then testified before the AOJ in January 2021. The Board finds no procedural error. However, the Board finds that the AOJ did not comply with the substantive requirements of 38 C.F.R. § 3.344. Namely, the AOJ relied on examinations that were less full and complete than the examination used to establish the 30 percent rating, which was in effect for almost nine years. The AOJ assigned the 30 percent rating based on a November 2012 VA examination, which included three diagnostic tests: an electrocardiogram (EKG), a chest x-ray, and an echocardiogram. Notably, the echocardiogram revealed left ventricular hypertrophy and a left ventricular ejection fraction (LVEF) of 65 percent. Under Diagnostic Code 7017, evidence of cardiac hypertrophy or dilatation on EKG, echocardiogram, or chest x-ray warrants a 30 percent rating. 38 C.F.R. § 4.104. The 2012 examiner estimated that a workload greater than 5 metabolic equivalents (METs) but not greater than 7 METs would result in dyspnea. This finding also supports a 30 percent rating under Diagnostic Code 7017. Id. However, the examiner noted that the Veteran's LVEF "better reflects [his] current cardiac functional status as there are no co-morbidities to limit function." The rating reduction went into effect following VA examinations in November 2018 and September 2020. The Board finds that neither examination was as full and complete as the 2012 examination. The November 2018 examination did not include any diagnostic testing. Instead, the 2018 examiner reviewed an echocardiogram from two months earlier, which revealed an LVEF of 55-60 percent. The examiner did not note or discuss any other diagnostic tests. The examiner also incorrectly indicated that the Veteran had not had any surgical procedures for the treatment of a heart condition. In fact, he had coronary bypass surgery following a heart attack in 2012. The 2018 examiner estimated that a workload greater than 7 METs but not greater than 10 METs would result in dyspnea. This is the estimated METs level due solely to the service-connected cardiac disability and no other comorbidities. However, the examiner noted that the Veteran's LVEF was a more accurate indicator of his cardiac functioning than the estimated METs level. The September 2020 examination did not include any diagnostic testing either. The 2020 examiner relied solely on the same 2018 echocardiogram noted above. Significantly, the examiner did not respond to the questions on the disability benefits questionnaire (DBQ) about cardiac hypertrophy and dilatation. In other words, the examiner did not address all of the relevant signs and symptoms contemplated in the rating criteria. The 2020 examiner estimated that a workload of 1-3 METs would result dyspnea, fatigue, angina, and dizziness. However, this METs level estimate was not due solely to the cardiac disability. The examiner was not able to provide an estimate for the cardiac disability alone, in light of the Veteran's other comorbid conditions. For this reason, the examiner also stated that the LVEF is more indicative of current cardiac function than the METs score. In sum, the 2012 examination included extensive diagnostic testing, while the later examinations did not. The 2018 examiner reviewed one recent echocardiogram, and made inaccurate findings about the Veteran's medical history on the DBQ. The 2020 examiner relied solely on a two-year-old echocardiogram, and failed to provide all of the information necessary to evaluate the disability under the rating criteria. Additionally, the evidence of record does not clearly demonstrate sustained improvement in the Veteran's disability. The Board observes that his LVEF decreased from 65 percent in 2012 to 55-60 percent in 2018. All three examiners determined that the objective LVEF finding was a better indicator of actual cardiac function than the subjective, interviewed-based METs scores. This evidence weighs against finding that the disability actually improved from 2012 to 2018. Murphy, 26 Vet. App. at 516-17. To the contrary, it suggests that his cardiac functioning may have worsened over time. The Board therefore concludes that the rating reduction was improper and must be set aside. Greyzck, 12 Vet. App. at 292. Restoration of the prior 30 percent rating is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.