Citation Nr: 21009936 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-08 493 DATE: February 23, 2021 ORDER The reduction of the rating for the Veteran’s coronary artery disease disability from 30 percent to a 10 percent evaluation was improper, and the 30 percent disability rating is restored, effective April 1, 2016. REMANDED Entitlement to a rating in excess of 30 percent for coronary artery disease is remanded. FINDINGS OF FACT 1. The 30 percent rating for the Veteran’s coronary artery disease was in effect for fewer than five years at the time of the reduction. 2. For the period from April 1, 2016, improvement of the Veteran’s service-connected coronary artery disease disability had not been demonstrated. CONCLUSION OF LAW The December 2017 RO rating decision which reduced the Veteran’s rating for his service-connected coronary artery disability from 30 percent to 10 percent, effective March 1, 2018, was not proper and the criteria for restoration of the 30 percent rating for this time period are met. 38 C.F.R. §§ 3.105 (e), 3.344 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) at a May 2019 hearing. Unfortunately, due to technical difficulties, a transcript of that hearing is not available. In January 2021, the Veteran testified at a new hearing before the undersigned VLJ and a copy of that hearing transcript is of record. Laws and Regulations VA regulations provide that where 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 prosing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e) (2020). The beneficiary must be notified of the contemplated action at his or her latest address of record and furnished detailed reasons. Id. The beneficiary must be given 60 days for the presentation of additional evidence. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his coronary artery disease disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Proposed Reduction A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See Greyzck v. West, 12 Vet. App. 288, 292 (1999) and cases cited therein. Procedurally, where a reduction in an 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 must be prepared setting forth all material facts and reasons. In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, 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 veteran expires. 38 C.F.R. § 3.105 (e). Initially, the Board finds that the RO complied with the procedural requirements for reductions. 38 C.F.R. § 3.105 (e) (2020). In May 2017, the RO proposed to reduce the Veteran’s evaluation for coronary artery disease from 30 percent to 10 percent. After the proposed reduction, the Veteran was given at least 60 days to present additional evidence, and was notified at his address of record. Thereafter, in the December 2017 rating decision, the RO reduced the 30 percent evaluation for the Veteran’s coronary artery disease to 10 percent, effective March 1, 2018. Also in accordance with 38 C.F.R. § 3.105 (e), the reduction was made effective from March 1, 2018, well beyond the last day of the month from the 60-day period from the date of the May 2017 notice of the proposed reduction. In sum, the reduction for the Veteran’s coronary artery disease disability from 30 percent to 10 percent was effectuated in a manner that satisfies the procedural requirements under 38 C.F.R. § 3.105 (e). Thus, the Board finds that the provisions of 38 C.F.R. § 3.105 (e) are applicable and were met; therefore, the reduction was procedurally proper. The Board must, however, still consider whether the reduction was factually appropriate based upon the evidence of record. Regarding rating reductions, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that 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, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344 (a) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown v. Brown, 5 Vet. App. 413, 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 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 evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this case, the 30 percent disability rating for an coronary artery disease disability was in effect for less than 5 years, from April 1, 2016 to March 1, 2018. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and 38 C.F.R. § 3.344 (b) are not applicable and an examination disclosing improvement will warrant a reduction in the rating. 38 C.F.R. § 3.344 (c). The question of whether a disability has improved involves consideration of the applicable rating criteria. The Veteran’s asthma is currently rated as 10 percent disabling, effective March 1, 2018 under Diagnostic Code 7107. Under 38 C.F.R. § 4.104, Diagnostic Code 7017, a 10 percent rating is warranted when a workload greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is warranted under Diagnostic Code 7017 when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent rating is warranted under Diagnostic Code 7017 when there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted under Diagnostic Code 7017 when there is chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A 100 percent evaluation is also warranted under Diagnostic Code 7017 for 3 months following hospital admission for coronary bypass surgery. For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters 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 for disability rating purposes. 38 C.F.R. § 4.104. Factual Background and Analysis A VA examiner provided a records review in February 2016. It was noted that in December 2015 the Veteran underwent a coronary artery bypass grafting (CABG). Continuous medication was required for control of his heart condition. He had a myocardial infarction but did not have congestive heart failure. He had arrhythmia as he had intermittent atrial fibrillation. He did not have a heart valve condition, pericardial adhesions or infectious heart conditions. There was evidence of cardiac hypertrophy and cardiac dilatation. The examiner indicated that his METs level was 1-3. The Veteran’s heart disability impacted his ability to work as he was still attending cardiac rehabilitation twice a week for the next 6 weeks and had not been given permission to chop wood yet which is what he would like to do. A VA examiner provided a records review in March 2017. The examiner noted that a February 2017 treatment record indicated that the Veteran presented with progressive dyspnea on exertion to the degree where he could not walk 50 feet or climb his basement stairs without shortness of breath. In the last 2 weeks he also had substernal chest pain with minimal activity which was relieved with rest. The examiner noted that the Veteran had an acute myocardial infarction in 2015. Te Veteran also had coronary artery disease, supraventricular arrythmia and a coronary artery bypass graft. Continuous medication was required for control of his heart condition. The Veteran had constant atrial fibrillation and had a heart valve condition as he had tricuspid. There was evidence of cardiac hypertrophy. The examiner noted that in February 2017 the Veteran performed a stress test but stopped in the third stage of the test due to dyspnea. The MET level provided was an 8.4. The examiner indicated that the Veteran’s coronary artery disease impacted his ability to work as he was unable to perform heavy manual labor. Based on a review of the record, the Board finds that the Veteran’s claim should be granted and his 30 percent disability rating for his coronary artery disease disability restored for the period from April 1, 2016. Initially, as noted above, the 30 percent evaluation assigned for the Veteran’s coronary artery disease disability was in effect for less than 5 years at the time of the reduction. As such, the Board does not have a heightened duty to show sustained material improvement as contemplated by 38 C.F.R. § 3.344(a) and (b). As noted above, a rating reduction is not proper unless the veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)). The Board finds that the March 2017 VA examination report, upon which the RO reduced the Veteran’s disability rating, fails to show any improvement in the Veteran’s coronary artery disease disability from the February 2016 VA examination which formed the basis of the original 30 percent disability rating, effective April 1, 2016. Notably, the February 2016 VA examination indicated that continuous medication was required for control of the Veteran’s heart condition and that he had a myocardial infarction and intermittent atrial fibrillation. He also did not have a heart valve condition, pericardial adhesions or infectious heart conditions. There was evidence of cardiac hypertrophy and cardiac dilatation. The examiner indicated that his METs level was 1-3 and the Veteran’s heart disability impacted his ability to work. The December 2017 rating decision reduced the 30 percent rating based upon the MET levels of the March 2017 VA examination as the Veteran’s MET level was 8.4. However, comparing the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 30 percent disability rating versus the demonstrated symptomatology since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Notably, the February 2016 and December 2017 VA examinations both indicated that the Veteran’s heart disability required continued medications and that he had previously had a myocardial infarction. Additionally, both examinations noted that there was evidence of cardiac hypertrophy. While the February 2016 VA examiner noted that the Veteran had intermittent atrial fibrillation it was also noted that the Veteran did not have a heart valve condition, pericardial adhesions or infectious heart conditions. In contrast, the December 2017 VA examiner found that the Veteran had constant atrial fibrillation and a heart valve condition. The February 2016 and December 2017 VA examiners also found that the Veteran’s coronary artery disease impacted his ability to work. Thus, affording the Veteran the benefit of the doubt, the evidence of record serves to support the continuance of the 30 percent evaluation, as it indicates that the Veteran’s symptomatology had progressed and continued to require the use of daily medications while also demonstrating constant atrial fibrillation, a heart valve condition and evidence of cardiac hypertrophy. Additionally, the December 2017 VA examiner noted that the Veteran’s coronary artery disease impacted his ability to work as he was unable to perform heavy manual labor. Accordingly, improvement under the ordinary conditions of life and work is not demonstrated. For these reasons, the Board concludes that the evidence is at least equally weighted on the question of whether the Veteran’s coronary artery disease disability had improved for the period from April 1, 2016, and the Veteran’s claim is granted. The Board finds that for the period from April 1, 2016, the Veteran’s 30 percent rating for a coronary artery disease disability was improperly reduced. Therefore, the Board finds that the reduction of the 30 percent disability rating was improper and that the restoration of the 30 percent rating for service-connected coronary artery disease is warranted, effective April 1, 2016. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421. The Board has resolved reasonable doubt in favor of the claimant in making this decision. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. Having determined that the Veteran’s rating for his service-connected coronary artery disability from 30 percent to 10 percent, effective March 1, 2018, was not proper and the criteria for restoration of the 30 percent rating for this time period are met, the Board turns to the question of the Veteran’s entitlement to a rating in excess of 30 percent rating for the period since April 1, 2016 for the Veteran’s service-connected coronary artery disease. Regarding the Veteran’s claim for a rating in excess of 30 percent for coronary artery disease, the Board notes that the last VA examination for this service-connected disability took place in March 2017. Notably, at his January 2021 hearing, the Veteran testified that his service-connected coronary artery disease had worsened since his last VA examination in March 2017. The Veteran specifically testified that his heart symptoms had worsened as his heart, even after grafting, was not improving. Given that the Veteran indicated that his service-connected coronary artery disease had worsened and he appears to be receiving continued treatment for this disability, the Board is of the opinion that a new VA examination would be probative. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected coronary artery disease, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”). Additionally, at his January 2021 hearing, the Veteran testified that he continued to receive all of his medical treatment from VA. To date, the most recent VA record from the VA is a March 2018 VA treatment report. Therefore, it appears that additional records pertaining to the Veteran’s claimed disability may exist. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the Secretary, and must be considered if the material could be determinative of the claim). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Appropriate efforts must be made to obtain all available VA treatment records from March 2018 to the present. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for VA examination before an appropriate physician to determine the current level of severity of his service-connected coronary artery disease disability. The Veteran’s claims file and a copy of this remand must be provided to the examiner(s) for review in conjunction with this examination, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner(s) should describe in detail all symptomatology associated with the Veteran’s coronary artery disease disability. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected coronary artery disease disability on his ability to work. 4. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should   then be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.