Citation Nr: 21010894 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-38 468 DATE: February 26, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss; to this extent, the appeal is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to an effective date earlier than November 14, 2016 for the grant of service connection for coronary artery disease, status post myocardial infarction and stent placement, is denied. The rating reduction of the Veteran’s coronary artery disease, status post myocardial infarction and stent placement, from 30 percent disabling to 10 percent disabling, effective September 1, 2019, was not proper; therefore, the 30 percent rating is restored, effective September 1, 2019. Entitlement to an initial rating higher than 30 percent for coronary artery disease, status post myocardial infarction and stent placement, is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicides, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Entitlement to service connection for bilateral hearing loss was denied by the RO in a September 2008 rating decision; the Veteran did not complete a substantive appeal or submit new and material evidence within one year. 2. Some of the evidence received since the September 2008 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating a claim for service connection for bilateral hearing loss. 3. Bilateral hearing loss manifested more than one year after separation and is not shown to be causally or etiologically related to an in-service event, injury or disease. 4. The preponderance of the evidence is against finding that tinnitus began during active service or is otherwise related to an in-service injury or disease. 5. A claim for service connection for ischemic heart disease was received in November 2016; in February 2017, the RO granted service connection for the Veteran’s heart disease, under a liberalizing law that was effective August 31, 2010. 6. The evidence indicates the Veteran had a diagnosis of coronary artery disease in 2014; therefore, he did not meet all the eligibility criteria of the liberalized benefit on the effective date of the liberalizing law. 7. The evidence used to reduce the rating for the Veteran’s coronary artery disease from 30 percent to 10 percent did not show improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 8. Metabolic equivalent (MET) testing does not show the Veteran develops symptoms such as dyspnea, fatigue, or angina at a workload of 5 METs or less, and there is no evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent, or more than one episode of active congestive heart failure in the past year. CONCLUSIONS OF LAW 1. The September 2008 rating decision that denied entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105 (a), 3.156, 20.1103. 2. The evidence received since the September 2008 rating decision is new and material, and the Veteran’s claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.385. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to an effective date earlier than November 14, 2016 for the award of service connection for coronary artery disease, status post myocardial infarction and stent placement, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816. 6. The reduction of the rating of the Veteran’s coronary artery disease from 30 percent disabling to 10 percent disabling, effective September 1, 2019, was not proper. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105 (e); 3.344(c); 4.1, 4.104, Diagnostic Code 7005. 7. The criteria for an initial rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from February 2017 and February 2018 rating decisions. The Veteran requested a hearing; however, he withdrew that request in a December 2020 statement. The Board notes that it was unclear whether the Veteran also desired to withdraw the issues on appeal. In December 2020, the Board requested clarification regarding whether the Veteran intended to withdraw the issues on appeal. The letter indicated that if the Veteran did not respond within 30 days, it would be assumed he desired to continue with the appeal. No response was received; as such, the Board will proceed to adjudicate all issues on appeal. Petition to Reopen 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss. The Veteran seeks to reopen his claim for entitlement to service connection for bilateral hearing loss. Notwithstanding a determination by the RO that new and material evidence has or has not been received to reopen the Veteran’s claim, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record with respect to this claim reflects that a claim for service connection for bilateral hearing loss was last denied in a rating decision of September 2008. The Veteran did not express timely disagreement or submit new and material evidence within one year and subsequently the rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran’s claim for service connection may only be reopened if new and material evidence is submitted. In this instance, since the September 2008 rating decision denied the claim on the basis that the Veteran did not relate his bilateral hearing loss to any specific event during military service, the Board finds that new and material evidence would consist of evidence of an in-service event. The evidence received since the September 2008 rating decision consists of numerous records and documents. Importantly, the Veteran was afforded a VA examination in December 2016, at which time it was noted that the Veteran has a moderate probability of military noise exposure conceded based on his military occupation specialty (MOS) of Field Wireman, with verified service in Vietnam. The Veteran reported military noise exposure to weapons fire and artillery without any hearing protection. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for bilateral hearing loss. The Board determines that the claim is reopened. Service Connection 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. Having reopened the claim of service connection for bilateral hearing loss on the basis of new and material evidence, the Board must next determine whether the Veteran would be unduly prejudiced by the Board immediately proceeding with the readjudication of the claim on the underlying merits. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that where the Board reopens a claim, but the AOJ did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from the readjudication of the claim); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of AOJ consideration of the merits of a claim). The Board finds that adjudication of the reopened bilateral hearing loss claim on a de novo basis is appropriate at this juncture. A review of the October 2019 statement of the case reflects that the RO, although addressing new and material evidence, found that the Veteran’s hearing loss was not incurred in or aggravated by service, and explained why. The Veteran was provided with the laws and regulations applicable to service connection in the October 2019 document and has submitted argument on the underlying claims. Thus, the Board’s proceeding with the service connection for bilateral hearing loss issue, without a remand to the AOJ, will not prejudice the Veteran. Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38C.F.R. §3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran was afforded a VA examination in December 2016. Here, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. It was also noted that military noise exposure was conceded based on the Veteran’s military occupation specialty (MOS) of Field Wireman with verified service in Vietnam. The examiner opined that the Veteran’s bilateral hearing loss and tinnitus were less likely than not caused by or a result of in-service noise exposure. The examiner opined that there was no clinically significant hearing threshold shift observed in either ear during service. As rationale for the opinion, the examiner explained that the Veteran entered into service with normal hearing, and the Veteran’s separation examination demonstrated normal hearing, with no clinically significant hearing threshold shifts in either ear. The examiner stated the opinion was based on a conceded history of military noise exposure, history of civilian noise exposure and the service treatment record which is negative for hearing threshold shifts or hearing loss; there is no objective evidence that the Veteran sustained a noise injury during service based on available audiograms. The examiner continued by explaining the Institute of Medicine (2006) stated there was an insufficient scientific basis to conclude that permanent hearing loss/tinnitus directly attributable to noise exposure will develop long after noise exposure occurs. The IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss/tinnitus was “unlikely.” With regard to the Veteran’s tinnitus, the examiner noted that the Veteran reported his tinnitus had been present since military service, described as a constant, bilateral ringing/buzzing sound. However, the examiner still opined that it was less likely than not due to service. The examiner noted the opinion was based on a conceded history of military noise exposure, history of civilian noise exposure, the Veteran’s reported date of onset of tinnitus and the service treatment records which are negative for complaints/diagnosis of tinnitus, hearing loss, or threshold shifts. Regarding post-service noise exposure, the examiner noted that the Veteran worked as a firefighter for many years and was exposed to sirens with no hearing protection worn. The examiner further noted that the Veteran’s hobbies included hunting and target shooting, also without hearing protection. The Board finds the examiner’s opinions to be very thorough, well-reasoned, and supported by the record, entitling them to great weight. The Board notes the December 2016 examiner cited to the Institute of Medicine (IOM) 2006 study in finding that research studies have shown hazardous noise exposure has an immediate effect on hearing and does not have delayed onset nor is it progressive or cumulative. The Board acknowledges that in June 2019, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in McCray v. Wilkie, 31 Vet. App. 243 (2019). In McCray, the Court discussed the 2006 IOM report. The Court held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. McCray, 31 Vet. App. at 257. The Board acknowledges that the December 2016 VA examiner relied, in part, on a 2006 IOM report as a basis for providing a negative opinion. The Board finds that does not render the opinion inadequate or diminish its probative value. The Board notes that the IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the IOM report’s own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (“unlikely”). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is unlikely. While a medical principle need not reach scientific consensus to adequately support a grant of VA benefits, the nexus element in a general service connection claim must be substantiated by a probability of a connection between the claimed disability and an incident of military service rather than a mere possibility of such a connection. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009); Bloom v. West, 12 Vet. App. 185, 187 (1999); Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board notes opposing studies or other contradictory medical evidence has not been submitted in this appeal. See 38 U.S.C. § 5107 (a) (“a claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Moreover, the Court in McCray referenced “a medical text’s qualifying or contradictory aspects” as one factor on a non-exhaustive list that is relevant to the Board’s evaluation of the probative value and adequacy of a medical opinion. See id. at 23. Here, the December 2016 VA examiner only partially relied on the findings of the 2006 IOM report. The examiner also discussed that there were no significant threshold shifts during service. Thus, the December 2016 VA examiner did not rely entirely on the IOM report in forming the conclusions but instead considered all relevant facts in this case. Therefore, given the foregoing and given that the December 2016 VA examiner provided a thorough examination report that took into consideration the Veteran’s prior medical history and lay statements, and provided a sufficient rationale for the Board to evaluate the claims, the Board gives much probative weight to the VA examiner’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The record does not contain any positive medical nexus opinions regarding the Veteran’s bilateral hearing loss or tinnitus. The only other opinion of record is from that of the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by these claims are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Indeed, the Board recognizes that there is a component of an inherently subjective nature of tinnitus, and that the Veteran may be uniquely situated to competently identify and report on the onset and duration of ringing in the ears. Here, however, the facts of this case (in-service and post-service noise exposure), render the nexus question complex requiring expertise to resolve. The evidence of record does not support the Veteran’s contentions. Given the complexity of the medical issues at hand, the VA examiner’s opinions are given significant weight in this case as to any nexus between the symptoms described by the Veteran and the in-service noise exposure. Thus, the examiner’s opinion is considered probative, as it is uncontroverted by any evidence of record, apart from the Veteran’s own assertions. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board looks at factors such as the health care provider’s knowledge and skill in analyzing the medical data). As the Board is only left with the VA examiner’s negative nexus opinions, the third element of service connection is not met for either condition. The Veteran’s assertion and perception he had hearing loss and tinnitus in service and chronically ever since service has been rendered clinically unfounded and implausible by the medical expert who carefully considered the Veteran’s statements and the other evidence of record. Accordingly, neither service connection for bilateral hearing loss nor tinnitus is warranted on a direct basis. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with bilateral sensorineural hearing loss, which is encompassed by the boarder term “organic diseases of the nervous systems,” and is therefore a recognized chronic disease for VA purposes. 38C.F.R. § 3.309 (a). Additionally, where there is evidence of acoustic trauma, tinnitus is considered a “chronic disease.” See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system). However, the preponderance of the evidence is against a finding of in-service hearing loss manifesting to a sufficient degree so as to identify the disease or manifestation to a compensable level in the first post-service year. At the Veteran’s separation examination his hearing was not found to be impaired for VA purposes. 38 C.F.R. § 3.385. The record does not contain any medical evidence that the Veteran’s hearing loss began shortly after his separation from service, nor that it has continued since his separation. The in-service noise exposure did not result in a noise injury. There is no persuasive medical evidence or persuasive credible lay evidence that the Veteran’s claimed disorders manifested to a compensable degree within a year of his separation from service or had their onset in service and continued ever since service. Accordingly, service connection for bilateral hearing loss and tinnitus based on the presumption in favor of chronic disease or continuity of symptomatology is not warranted. Walker v. Shinseki, 708 F.3d 1331 (2013); 38C.F.R. §§ 3.303 (b), 3.307, 3.309. Thus, the preponderance of evidence is against the Veteran’s claims, there is no doubt to be resolved, and service connection is not warranted for bilateral hearing loss and tinnitus. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Earlier Effective Date 4. Entitlement to an effective date earlier than November 14, 2016 for the grant of service connection for coronary artery disease, status post myocardial infarction and stent placement. The Veteran seeks entitlement to an earlier effective date for the grant of service connection for coronary artery disease. The Veteran has not presented any theory of entitlement for an earlier effective date for the award of service connection, nor has he expressed what effective date for the award he considers to be appropriate. Service connection for coronary artery disease, status post myocardial infarction and stent placement was granted in a February 2017 rating decision, and an effective date of November 14, 2016 was assigned. Except as specifically provided, the effective date of a rating and award for 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. Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of the claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff’d, 106 F.3d 1577 (Fed. Cir. 1997). Additionally, VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). A Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease, including ischemic heart disease. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816 (c)(1)-(2). Ischemic heart disease was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309 (e) effective as of August 31, 2010. Thus, the date of the liberalizing law is August 31, 2010. However, if the requirements of 38 C.F.R. § 3.816 (c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816 (c)(4). The Veteran served in Vietnam and was granted presumptive service connection for ischemic heart disease (for coronary artery disease, status post myocardial infarction and stent placement) based on exposure to herbicides during such service. Thus, he is a Nehmer class member. However, the record does not reflect that he was denied compensation for ischemic heart disease between September 25, 1985, and May 3, 1989. Likewise, it does not indicate that he submitted a claim for service connection for that condition between May 3, 1989, and August 31, 2010, the date on which the liberalizing law that added ischemic heart disease as a disease presumptively due to in-service exposure to herbicides became effective. Accordingly, the effective date for the grant of service connection for ischemic heart disease must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c)(4). Turning to 38 C.F.R. § 3.400, prior to March 24, 2015, VA recognized formal and informal claims. Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO. The Board has considered whether any evidence of record prior to the Veteran’s claim in November 2016 was a formal claim or could serve as an informal claim, in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The Board finds that the Veteran did not submit any informal or formal claim for service connection for ischemic heart disease prior to November 2016. The Veteran did not list ischemic heart disease as an issue in a prior October 2007 formal claim. Regarding a possible informal claim, the Board acknowledges that medical records reflect heart problems prior to the February 2017 rating decision. Specifically, the evidence indicates the Veteran was diagnosed with coronary artery disease as early as 2014. See September 2019 private treatment note. However, the mere existence of medical evidence of a diagnosis and treatment does not establish an intent to seek service connection or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998). The date VA received the Veteran’s claim, November 14, 2016, is later than the date entitlement arose for ischemic heart disease; thus, the grant of service connection was assigned as of the date of receipt of the claim. Turning to 38 C.F.R. § 3.114, however, if a claim is reviewed at the request of the Veteran more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. In this case, the Veteran filed a claim in November 2016, more than one year after the effective date of the liberalizing law (August 31, 2010) that added ischemic heart disease to the list of diseases eligible for presumptive service connection based on exposure to herbicide agents. In order for a claimant to be eligible for the one-year retroactive payment under that regulation, the evidence must show that the claimant met all the eligibility criteria of the liberalized benefit on the effective date of the liberalizing law and such eligibility existed continuously since that time. As already noted, ischemic heart disease was added to the list of diseases presumed to be related to herbicide exposure on August 31, 2010. A review of the record reflects that the Veteran has had a diagnosis of ischemic heart disease since 2014, after the liberalizing date. Therefore, the criteria for entitlement to an effective date one-year prior to his claim are not met, and an effective date prior to November 14, 2016 is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 5. Entitlement to an initial increased rating for the Veteran’s coronary artery disease, status post myocardial infarction and stent placement, rated as 30 percent disabling prior to September 1, 2019 and as 10 percent disabling, thereafter, to include whether the reduction from 30 percent disabling to 10 percent disabling, effective September 1, 2019 was proper. A February 2017 rating decision granted service connection for the Veteran’s coronary artery disease, and assigned a rating of 30 percent, effective November 14, 2016. In February 2018, a notice of disagreement from the Veteran was received, indicating disagreement with the effective date of the award as well as the rating assigned. Several days later, the Veteran was notified of a proposed reduction in his rating. The Veteran requested a decision review officer hearing, which was held in March 2019. The RO reduced the Veteran’s rating in June 2019. Based on the evidence of record, the Veteran’s rating was reduced to 10 percent, effective September 1, 2019. Reduction VA regulations allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after VA follows certain procedural guidelines. 38 C.F.R. § 3.105 (e). As a preliminary matter, the Board notes that the Veteran does not contend any noncompliance with the procedural requirements for rating reductions. 38 C.F.R. § 3.105 (e). Therefore, the Board will focus only upon whether the facts warrant rating reduction. Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients, however, may be afforded greater protections under 38 C.F.R. § 3.344 (a) and (b), which set forth the requirements for reduction of ratings in effect for five years or more. The requirements prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. These provisions also prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those with ratings in effect for less than five years), reexaminations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Specifically, in such cases it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344 (c). Additionally, 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 rating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. At the time the RO reduced the rating for the Veteran’s coronary artery disease, effective September 1, 2019, his 30 percent rating had been continuously in effect since November 2016, a period of less than five years. As such, the provisions of 38 C.F.R. § 3.344 (a) and (b), regarding evidentiary requirements for a disability rating in effect for a period of five years or more, are not applicable. As noted, 38 C.F.R. §§ 4.2 and 4.10, taken together, however, mandate that in any rating reduction, irrespective of the time that the disability rating has been in effect, it must not only be determined that an improvement in a disability has actually occurred, “but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” Faust v. West, 13 Vet. App. 342, 349 (2000) (citing Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993); cf. 38 C.F.R. § 4.10. 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 evaluation; rather, it must be shown by a preponderance of the evidence that the AOJ’s reduction was warranted. See Brown (Kevin), supra; Kitchens v. Brown, 7 Vet. App. 320 (1995). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The Veteran’s coronary artery disease is rated under Diagnostic Code (DC) 7005. Under DC 7005, a 10 percent rating is warranted where 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 a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for 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 results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. One metabolic equivalent (MET) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). 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. Id. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase “30 to 50 percent” means 30 percent through 50 percent. Id. at 380. In the instant case, the Veteran was assigned a 30 percent disability rating based on the results of a January 2017 VA examination. The Veteran reported intermittent angina, but it was noted it was difficult to distinguish from indigestion, according to the Veteran. It was noted it was not precipitated with exertion, he could be sitting or walking up a hill, and the pain can last 25-35 minutes. He denied palpitations, diaphoresis, dizziness, or syncope. It was noted that continuous medication was necessary, and he had a myocardial infarction in January 2015. He did not have congestive heart failure, arrhythmia, a heart valve condition, pericardial adhesions, or infectious cardiac conditions. The examiner noted the Veteran had an angioplasty in January 2015. Physical examination revealed regular heart rhythm, with jugular-venous distension. Peripheral pulses were normal, there was no peripheral edema, or any other pertinent physical findings. There was echocardiogram evidence of cardiac hypertrophy and cardiac dilation. The examiner indicated that a December 2016 echocardiogram revealed a left ejection fraction of 62 percent, with normal LV systolic function with evidence of impaired relaxation. A February 2016 exercise test revealed good exercise performance and was negative for evidence of ischemia; no exercise induced arrythmia was seen. MET levels were not provided. The examiner indicated that interview-based METs was a workload greater than 5 METs but not greater than 7, due to angina, and was due solely to the service-connected heart disability. The Veteran was afforded a VA examination in December 2017. He reported shortness of breath with activity and chest discomfort. It was noted that continuous medication was required. He did not have congestive heart failure, arrhythmia, a heart valve condition, pericardial adhesions, or infectious cardiac conditions. Peripheral pulses were normal, there was no peripheral edema, or any other pertinent physical findings. The same December 2016 echocardiogram was noted as in the prior VA examination, however, this examiner indicated the echocardiogram did not reveal evidence of cardiac hypertrophy or dilation. Interview based METs was a workload greater than 7 METs but no greater than 10, due to dyspnea and angina. It was noted that an exercise stress test had also been performed in 2017 and more accurately reflected the Veteran’s current cardiac functional level, however, no METs results were provided. The examiner then said that the Veteran’s METs level limitation was not due solely to his service-connected heart disability, and it was due to multiple medical conditions, including the heart disability, aging, COPD, and osteoarthritis. The examiner explained that it was not possible to accurately estimate the percentage of METs limitation attributable to each medical condition. An addendum opinion was requested to clarify the discrepancies between the reporting of the results of the December 2016 echocardiogram in the January 2017 VA examination versus the December 2017 VA examination. The examiner stated that the December 2016 study indicated it was “technically difficult” and reported that systolic function, left ventricular size, and wall thickness were normal, however, there were patterns to suggest impaired LV relaxation. The examiner stated there was therefore no objective evidence of hypertrophy or dilation. The Veteran’s rating was then reduced to 10 percent in a June 2019 rating decision, effective September 1, 2019. When compared to the earlier January 2017 VA examination findings, the Board does not find that the December 2017 examination shows improvement. As evidenced in these examinations, the Veteran continued to report angina, and during the December 2017 VA examination, he also reported shortness of breath in addition to angina and chest discomfort on activity. Although the December 2017 VA examination opined that the Veteran’s METs level was not due solely to his service-connected disability, it was noted that it was not possible to accurately estimate the percentage of METs limitation attributable to each disorder. Therefore, the Board will assume that the total METs limitation is attributable to his heart disability. See, e.g., Mittleider v. West, 11 Vet. App. 181, 182 (1998). Furthermore, although the December 2017 VA examiner did not find evidence of hypertrophy or dilation in the December 2016 study, the January 2017 examiner did indicate there was evidence. The December 2017 VA examiner specifically noted that the study was “technically difficult” and did have patterns to suggest impaired LV relaxation. The Board finds the evidence is in equipoise as to whether there was evidence of hypertrophy or dilation based on the December 2016 study. After close analysis, the Board concludes the medical evidence does not support a finding that the Veteran’s coronary artery disease had improved at the time of the June 2019 rating decision reduction. On review and considering the objective findings as well as the Veteran’s reported symptoms, it cannot be said that the preponderance of the evidence supports a finding of improvement. The Veteran continued to report angina, chest discomfort and shortness of breath, and did not show improvement in the Veteran’s ability to function under the ordinary conditions of life and work. In fact, the January 2017 VA examination, for which his 30 percent rating was based on, specifically noted that the Veteran’s functional limitation was mild. There is no indication that his functional limitation was less than mild upon examination in December 2017. Furthermore, in the June 2019 rating decision, the RO did not offer any discussion or analysis of the Veteran’s current findings with respect to the regulations pertaining to rating reduction cases, and simply applied the rating criteria to the objective findings from the December 2017 VA examination. The RO did not discuss the effect of the Veteran’s disability on his ability to function under the ordinary conditions of life and work. Thus, the Board finds that the June 2019 rating decision that reduced the Veteran’s coronary artery disease from a 30 percent rating to a 10 percent rating was improper and is void ab initio. Accordingly, the rating is restored. Increased Rating The Veteran’s 30 percent rating for his coronary artery disease has been restored for the entire appeal period. The Veteran seeks entitlement to an initial rating higher than 30 percent. As noted, a higher 60 percent rating is warranted for 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 results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. After analysis of the evidence of record, the Board finds that the Veteran’s coronary artery disease is appropriately rated by the currently assigned 30 percent rating, and the criteria for a disability rating higher than 30 percent have not been met at any time during the appeal period at issue. The Board acknowledges that the Veteran continues to experience chest pain, fatigue and dyspnea, and has sought treatment for these symptoms. See, e.g., March 2019 private treatment record. However, there is no evidence of more than one episode of acute congestive heart failure in the past year. There is no evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent, and no evidence that a workload of greater than 3 METs but less than 5 METs results in symptoms such as dyspnea and angina. The December 2017 VA examiner indicated the Veteran’s interview based METs was a workload greater than 7 METs but not greater than 10, due to dyspnea and angina. Of note, a March 2019 private treatment note specifically stated that a cardiac catheterization in July 2018 demonstrated mild coronary artery disease. A September 2019 private treatment note indicated the Veteran complained of chest pain, he had no symptoms of coronary artery disease, and was CCS class 0, indicating he was asymptomatic; however, he still has non-aginal chest pain. The treatment note indicated that since he had a negative cardiac catheterization last year, he did not need any ischemic evaluations currently. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent and credible to report his symptoms such as chest pain and shortness of breath. To the extent that the Veteran has argued that a higher evaluation for his coronary artery disease is warranted, however, these assertions are outweighed by more probative evidence provided by the examinations of qualified medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, these lay statements do not provide any basis upon which to assign any higher rating. Accordingly, the Board concludes that the Veteran’s impairment due to his coronary artery disease has been most consistent with a 30 percent disability rating for the entire period on appeal, and no higher. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 7. Entitlement to service connection for COPD, to include as due to exposure to herbicides. The Veteran seeks entitlement to service connection for COPD, to include as due to exposure to herbicides. The Veteran has a current diagnosis of COPD. See, e.g., December 2019 VA Active Problem List. Exposure to herbicides has been conceded as the Veteran served in Vietnam from Vietnam from February 1968 to October 1968. See, e.g., personnel records; September 2008 rating decision. To date, the Veteran has not yet been afforded a VA examination and a medical opinion has not been obtained. On remand, the Veteran should be afforded a VA examination and a VA medical opinion should be obtained. 8. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. The Board notes that the Veteran is service connected for PTSD and coronary artery disease, and prior to November 4, 2019, does not meet the schedular percentages required for entitlement to a TDIU. Therefore, the Board finds that the Veteran’s claim for entitlement to a TDIU is intertwined with the pending service connection claim on appeal, as the outcome of the service connection claim could affect his schedular ratings. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As such, a decision on the claim of entitlement to a TDIU is being deferred pending completion of the development ordered on remand to avoid piecemeal adjudication. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for his COPD. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder must be provided to the examiner for review. The examiner should state in the examination report that the claims folder has been reviewed. *The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s COPD is causally or etiologically due to service, to include as due to exposure to herbicides. *In rendering this opinion, the examiner is asked to consider whether there is a medically sound basis to attribute in any way the Veteran’s COPD to his in-service exposure to herbicides. *The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for COPD as due to herbicide exposure. The question here is what is the likelihood that this Veteran’s COPD is related to his herbicide exposure given his medical history, family history, other risk factors, etc. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.