Citation Nr: 21006024 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-39 859 DATE: February 3, 2021 ORDER The reduction of the 60 percent disability rating to 30 percent for service-connected coronary artery disease status-post coronary artery bypass graft (CABG) effective July 1, 2017, was not proper, and restoration of the 60 percent rating for service-connected coronary artery disease status-post CABG is granted. FINDING OF FACT The decision to reduce the Veteran’s disability rating for service-connected coronary artery disease status-post CABG from 60 percent to 30 percent effective July 1, 2017, was not proper, as the preponderance of the evidence does not establish an actual change in the disability based upon a review of his entire history of the condition, or that any improvement actually reflects an improvement in his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in disability rating from 60 percent to 30 percent effective July 1, 2017, for service-connected coronary artery disease status-post CABG was not proper, and the 60 percent rating will be restored effective July 1, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344. Introduction The Veteran served honorably on active duty in the United States Air Force during the Korean Conflict Era, Vietnam Era, and Peacetime, from November 1950 to September 1954 and April 1958 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In his VA Form 9 substantive appeal submitted timely in August 2018, the Veteran requested an optional live videoconference hearing, which was scheduled for August 19, 2019, with notice provided to the Veteran. However, the Veteran did not appear for the scheduled hearing and, in January 2021, his representative stated the Veteran “did not report for reasons unknown to us.” As the Veteran failed to show for his scheduled hearing and failed to show good cause for his absence, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). Finally, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS AND BASES FOR FINDING AND CONCLUSION Rating Reductions A Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Generally, when reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a Rating Decision proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The Veteran must be notified of the contemplated action and furnished detailed reasons. The Veteran must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In any rating reduction case, VA must 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 examinations; and (3) whether any improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Faust v. West, 13 Vet. App. 342, 349 (2000) (summarizing the requirements that VA must follow in all reduction cases, “regardless of the rating level or the length of time that the rating has been in effect”). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344(a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these 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. Re-examinations disclosing improvement in these disabilities will warrant a reduction in rating. Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath, 1 Vet. App. at 595. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher rating; rather, it must be shown by a preponderance of the evidence that the RO’s reduction was warranted. See Brown, supra; Kitchens v. Brown, 7 Vet. App. 320 (1995). The reduction of the 60 percent disability rating to 30 percent for service-connected coronary artery disease status-post CABG effective July 1, 2017, was not proper, and restoration of the 60 percent rating for service-connected coronary artery disease status-post CABG is granted. A March 2016 Rating Decision proposed to reduce the Veteran’s disability rating for service-connected coronary artery disease status-post CABG from 60 percent to 30 percent, and a May 2017 Rating Decision effectuated the reduction effective July 1, 2017. As an initial matter, the Board notes that the heightened requirements under 38 C.F.R. § 3.344(a) and (b) are not applicable in the case at bar, as the Veteran’s 60 percent disability rating for service-connected coronary artery disease status-post CABG was assigned effective January 1, 2016. Thus, the 60 percent disability rating was in effect for less than five years. 38 C.F.R. § 3.344(c). The Veteran’s claims file was reviewed by a VA examiner in July 2015, at which time the examiner reported diagnoses of coronary artery disease and CABG. The VA examiner noted that the Veteran underwent a cardiac catheterization a few weeks earlier, “and was told by his cardiologist that likely in the next year he would need a stent placed.” Further, the examiner reported no congestive heart failure (CHF), cardiac hypertrophy, or cardiac dilation. The most recent diagnostic testing referenced by the VA examiner was a September 2010 echocardiogram revealing a left ventricular ejection fraction (LVEF) of 50 to 55 percent. An interview based METs test was conducted and noted a workload of greater than seven to 10 METs and resulting in dyspnea and angina. The examiner reported “[n]o recent cardiology records since last [compensation and pension] exam available for review.” In February 2016, the Veteran’s claims file was reviewed by the same VA examiner who conducted the July 2015 review. This time, the VA examiner reported diagnoses of coronary artery disease, non-chronic CHF, and CABG. According to the examiner, the Veteran had not experienced an episode of CHF in the preceding year. The VA examiner noted the Veteran had been hospitalized in June 2015 and October 2015 due to chest pain. Further, the examiner indicated that an echocardiogram performed in October 2015 revealed both cardiac hypertrophy and cardiac dilation. The examiner reported finding no “further medical records indicating Veteran has had any further intervention for his service connected [sic] ischemic heart disease.” According to the VA examiner, because the Veteran suffers from “multiple medical conditions including the heart condition(s); it is not possible to accurately estimate the percent of METs limitation attributable to each medical condition.” The Veteran submitted, inter alia, a Heat Conditions Disability Benefits Questionnaire (DBQ) completed by a private physician, Dr. G.D., and dated May 2016. Dr. G.D. reported the Veteran’s diagnoses as coronary artery disease, stable angina, carotid artery disease, and hypertension. No CHF or cardiac dilation were reported; however, cardiac hypertrophy was indicated. Dr. G.D. noted that a stress test was conducted in November 2015 and provided a copy of same, but no METs testing was performed. The LVEF was reported as 61 percent, and Dr. G.D. opined that the Veteran’s chest pain would limit activities involving “moderate to heavy exertion.” The pharmacologic stress test report indicates the Veteran achieved “a work level of Max. METS: 1.00.” A VA medical center (VAMC) treatment note dated July 2014 reported problems including coronary artery disease and a history of CHF. In May 2016 and May 2017, VAMC treatment notes report problems including coronary artery disease and a history of CHF and CABG. According to the treatment note, the Veteran continued to have angina on exertion and underwent “multiple hospitalizations since 1/2016.” Further, a VAMC treatment note dated November 2017 states the Veteran complained of bilateral lower extremity swelling and that he was hospitalized and diagnosed “with CHF [on] 9/10/2017.” In October 2014, a private medical treatment note states the Veteran was recently “treated for exacerbation of [CHF] with an increase in his diuretics without any improvement of his symptoms.” The private treatment records also reference an August 2015 cardiac catheterization and June 2016 cardiac catheterization with stent placement. A private treatment record dated August 2017 indicates the Veteran was hospitalized for acute, chronic diastolic heart failure. For the following reasons, the Board finds the reduction of the Veteran’s disability rating for service-connected coronary artery disease status-post CABG was improper. First, the Board assigns little probative weight to the VA examiner’s report in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For example, the VA examiner’s July 2015 and February 2016 reports are inconsistent regarding the involvement or frequency of CHF and cardiac hypertrophy and dilation. Next, in July 2015 the VA examiner reported the Veteran’s LVEF as 50 to 55 percent, and the Board observes that a 50 percent LVEF is consistent with a 60 percent disability rating. Further, in February 2016 the examiner noted a June 2015 cardiac catheterization but no “further medical records indicating Veteran has had any further intervention for his service connected [sic] ischemic heart disease;” yet, she then referenced subsequent June 2015 and October 2015 hospitalizations and diagnostic testing. Additionally, while the VA examiner conducted an interview based METs test in July 2015 with an estimated workload of greater than seven to 10 METs, no such testing was conducted in February 2016 and no estimated METs workload provided. Finally, the Board observes that neither VA examination report was based upon an in-person examination of the Veteran. The Board also assigns little probative weight to the DBQ form completed by Dr. G.D. in May 2016. See Nieves-Rodriguez, 22 Vet. App. 295. The form indicates no CHF involvement; however, such an indication is at odds with the Veteran’s treatment records noting a history of CHF, including a subsequent hospitalization for same. Further, the form does not include METs testing or estimated workload tolerance, and it is unclear from the form what evidence was reviewed by Dr. G.D. prior to completing it. The Board finds that the preponderance of the evidence does not reflect an actual change in the disability based upon a review of the entire recorded history of the condition. See Murphy, 26 Vet. App. at 516-17. The Board also finds the examination reports are not based upon thorough examinations. Id. Finally, the Board finds that the preponderance of the evidence does not reflect actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Id. Based upon the foregoing, the Board finds that a preponderance of the evidence of record fails to establish that the RO’s rating reduction was warranted. Further, the Board finds the criteria for restoration of a 60 percent rating for service-connected coronary artery disease status-post CABG effective July 1, 2017, continue to be met. Therefore, the rating reduction effective July 1, 2017, must be vacated and the Veteran’s prior 60 percent disability rating restored for service-connected coronary artery disease status-post CABG. Schafrath, 1 Vet. App. at 595. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.