Citation Nr: 21040407 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 19-07 554 DATE: July 3, 2021 THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease, and if so, whether the reopened claim should be granted. 2. Whether the reduction from a 60 percent to a 30 percent rating for service-connected atherosclerotic cardiovascular disease effective May 1, 2016, was proper. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ORDER New and material evidence sufficient to reopen the claim for entitlement to service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease has been received, and the application to reopen is granted. As the rating reduction from a 60 percent to a 30 percent rating for service-connected atherosclerotic cardiovascular disease was improper, a 60 percent rating effective May 1, 2016, is restored. REMANDED Entitlement to service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. In an unappealed July 2013 rating decision, the RO denied service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease. 2. The evidence associated with the claims file subsequent to the July 2013 denial includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection, is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease. 3. In a July 2013 rating decision, the Agency of Original Jurisdiction (AOJ) notified the Veteran of a proposal to reduce the disability rating for his service-connected atherosclerotic cardiovascular disease from 60 percent to 30 percent, as well as a 60-day period for the submission of evidence and the right to request a predetermination hearing within 30 days. 4. In a January 2016 rating decision, the AOJ implemented the reduction of the disability rating for the Veteran's service-connected atherosclerotic cardiovascular disease from 60 percent to 30 percent effective April 1, 2016. A subsequent January 2019 Rating decision corrected the effective date to May 1, 2016. 5. At the time of the May 1, 2016 reduction, the Veteran's disability rating had been in effect for at least five years. 6. The January 2016 rating decision was based on a single examination and was not supported by the record evidence, to include clinical findings demonstrating material improvement of the service-connected atherosclerotic cardiovascular disease under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for restoration of a 60 percent disability rating effective May 1, 2016, for the service-connected atherosclerotic cardiovascular disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 7005 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to October 1970. This matter is before the Board of Veterans Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. The Veteran testified in April 2021 before the undersigned Veteran's Law Judge (VLJ); a transcript of the hearing is of record. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease. Generally, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. 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). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Simply stated, the standard is low, but it is a standard that needs to be met. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. In an July 2013 rating decision, the RO denied service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease because there while there was a past history of transient ischemic attack, there was no evidence of chronic residuals of strokes. The Veteran did not file an appeal and the decision became final. In October 2015, the Veteran submitted new medical evidence showing a history of strokes with lingering symptoms. See September 2013 private treatment record. The pertinent evidence added to the record since the July 2013 denial, includes private medical records showing that the Veteran has a history of strokes with potential residuals. Additionally, the Veteran has submitted a private medical opinion addressing the etiology of his claimed disability. See March 2016 private medical opinion. The Board finds that this evidence is new, in that it is not cumulative or redundant of evidence already of record. Furthermore, the evidence relates to an unestablished fact necessary to substantiate the claim, i.e. that the Veteran has a current disability and in conjunction with the evidence currently of record, including the Veteran's credible reports of stroke residuals, raises a reasonable possibility of substantiating the claim. As such, the Board finds that the low threshold requirement for new and material evidence has been satisfied, and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. As the rating reduction from a 60 percent to a 30 percent rating for service-connected atherosclerotic cardiovascular disease was improper, a 60 percent rating effective May 1, 2016, is restored. The law provides that where a rating decision was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155 (2012). When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10 (2020). These provisions impose a clear requirement that VA rating reduction be based upon review of the entire history of the Veteran's disability. Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it 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. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344 (c), however, specify that the provisions of 38 C.F.R. § 3.344 (a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Pursuant to 38 C.F.R. § 3.344 (a), if a rating has been in effect for more than 5 years, then rating agencies will handle cases of changes of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344 (a). It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Id. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Id. Ratings on account of diseases subject to temporary or episodic improvement, notably arteriosclerotic heart disease, will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. By regulation, the RO must observe the provisions of 38 C.F.R. § 3.344 (a) when reducing a disability rating that has been in place for more than five years. Greyzck, 12 Vet. App. at 292. It is well established that failure of the RO to consider and apply the applicable provisions of 38 C.F.R. § 3.344 in such cases, renders a rating decision void ab initio. See Greyzck, 12 Vet. App. at 292; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. Initially, with regard to the reduction from a 60 percent rating to a 30 percent rating, the Board notes that the RO complied with the due process procedural requirements for reductions set forth in 38 C.F.R. § 3.105 (e). In July 2013, the RO proposed to reduce the Veteran's rating for atherosclerotic cardiovascular disease from 60 percent to 30 percent. After the proposed reduction, he was given 60 days to present additional evidence and was notified at his address of record. The Veteran and his then attorney testified before a decision review officer (DRO) in November 2015. Thereafter, in a January 2016 rating decision, the RO reduced the 100 percent rating for ischemic heart disease to 60 percent, effective April 1, 2016. However, a subsequent January 2019 rating decision found that the assignment of the effective date of the reduction was a clear an unmistakable error and instead assigned a date of May 1, 2016. In this case, at the time of the reduction, the Veteran had been rated as 60 percent for service-connected atherosclerotic cardiovascular disease for more than five years. Hence, the rating is entitled to additional protections noted above. Additionally, the VA must still establish, based on review of the entirety of the record, that the reduction is warranted and that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. The applicable legal standard summarized in Sorakubo v. Principi, 16 Vet. App. 120 (2002), requires that in the case of a rating reduction, the record must establish that the reduction is warranted by a preponderance of the evidence and that the reduction was in compliance with 38 C.F.R. § 3.344, if applicable. See Brown, 5 Vet. App. at 42. 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). In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. However, pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran's disability is evaluated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005. Under DC 7005, a 30 percent rating is warranted for a history of myocardial infarction resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 5 METs, but not greater than 7 METs; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for a history of myocardial infarction resulting in more than one episode of acute congestive heart failure in the past year; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3 METs, but not greater than 5 METs; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Finally, a 100 percent rating is warranted for a history of myocardial infarction resulting in chronic congestive heart failure; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of 3 METs or less; or left ventricular dysfunction with an ejection fraction of less than 30 percent. For rating diseases of the heart, one MET (metabolic equivalent) 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. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, 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. 38 C.F.R. § 4.104, Note 2. Following a review of the record, the Board finds that the rating reduction for the Veteran's ischemic heart disease from 60 percent to 30 percent, effective May 1, 2016 was improper, and that restoration is warranted. Specifically, the Board finds that the RO did not comply with the provisions of 38 C.F.R. § 3.344 when it reduced the Veteran's disability rating in January 2016. To wit, the RO relied on a single June 2013 VA examination when reducing the Veteran's disability, and there and there is conflicting evidence as to whether this represented a sustained improvement. By way of history, the Veteran was afforded a June 2011 VA examination. The examiner noted, in pertinent part, left ventricular dysfunction with an ejection fraction was 45 to 50 percent. The examiner also noted a March 2011 stress test that recorded a workload of exactly 7 METs resulted in dyspnea, fatigue, angina, dizziness or syncope. In a July 2011 rating decision, the Veteran was granted service connection for an ischemic heart disease and assigned an evaluation of 60 percent effective August 31, 2010 based on the results of the June 2011 VA examination. The Veteran received another VA examination in June 2013. The examiner noted ischemic heart disease. However, the examiner did not conduct a new stress test, and merely cited the March 2011 stress test. In fact, the examiner misrepresented the findings of the March 2011 stress test and cited the results as greater than 7 METS but no more than 10 METS. As noted above, the March 2011 stress test cited a value of precisely 7 METS. The examiner also recorded that left ventricular dysfunction with an ejection fraction was 55 to 60 percent. A July 2013 rating decision then proposed to decrease the rating to 30 percent for the Veteran's ischemic heart disease. The Veteran, through his attorney, submitted a statement contesting the proposed reduction in August 2013. The statement in pertinent part requested a hearing to contest the proposed reduction. Such a hearing was held in November 2015. The Veteran testified that he continued to experience shortness of breath, dizziness, tightness in his chest, and fatigue after activity. The Veteran claimed that he used to be able to go biking and backpacking, but that since the reduction was proposed, he had not been able to engage in any of these activities due to his heart disability. Additionally, the Veteran claimed that he was now sedentary and was unable to mow his lawn, that he experienced more trouble climbing stairs. In essence, the Veteran credibly testified that he did not feel an improvement in the ordinary conditions of his everyday life. The Veteran also submitted private treatment records, received by VA in November 2015. While some of these records show some improvement in symptoms after receiving a pacemaker in May 2014, others continue to show continuing symptoms that he experienced daily. See April 2014 and March 2014 private treatment notes. A February 2016 rating decision then assigned a rating of 60 percent for the ischemic heart disease, effective April 1, 2016. As noted above, the effective date was corrected to May 1, 2016 by a subsequent January 2019 rating decision. The Veteran submitted a Notice of Disagreement (NOD) in March 2016. An accompanying report by Mr. J.P., a forensic vocational expert, detailed that the Veteran had continued to experience dizziness and lightheadedness with exertion and ascending stairs. The Veteran also submitted a private heart examination which cited a stress test from December 2001, recording a METS level of 1-3. Given the medical evidence of record combined with the Veteran's lay statements, the Board finds that that the reduction in the rating was improper. The Board finds that the evidence shows that the RO improperly relied upon a single examination when reducing the Veteran's disability rating, contrary to the requirements of 38 C.F.R. § 3.344. See Greyzck, 12 Vet. App. at 292; see also Hayes, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277 (1992). Additionally, as it is not shown that the Veteran demonstrated material improvement under the ordinary conditions of life, a restoration of the 60 percent rating for atherosclerotic cardiovascular disease is warranted. For these reasons, restoration of the 60 rating for atherosclerotic cardiovascular disease represents a full grant of the benefit sought for this issue on appeal. REASONS FOR REMAND 1. Entitlement to service connection for transient ischemic attack (TIA) as secondary to service-connected atherosclerotic disease is remanded. 2. Entitlement to a TDIU is remanded. The Veteran asserts that he from past transient ischemic attacks, and that these past potential strokes were cause or aggravated by his service-connected include atherosclerotic disease. The Veteran has also claimed to suffer from residuals related to his transient ischemic attacks or strokes. See April 2021 Board hearing. The Veteran was originally administered a VA examination in June 2013. The examiner stated that while there was evidence of a transient ischemic attack, there was no evidence of a stroke or residuals thereof. However, as noted above, the Veteran has subsequently submitted medical evidence which contains potential evidence of past strokes and complaints of residuals thereof. While the Veteran has submitted a private nexus opinion, the examiner did not appear to have access to the claims file. Additionally, Dr. J.N. the private examiner, indicated that the Veteran's transient ischemic attacks in 2002 were due to atrial fibrillation, a condition for which the Veteran has not been service connected. Finally, the report does not record any lasting residuals attributable to any stroke or ischemic attack. Therefore, there remains significant confusion as to the nature and etiology of any claimed transient ischemic attack/stroke disability and residuals thereof. The Board finds that a remand is necessary in order to afford the Veteran a new VA examination and opinion to determine the nature and etiology of his claimed disability. The Board also notes that the issue of entitlement to a TDIU is inextricably intertwined with the outcome of the Veteran's pending claim for service connection for transient ischemic attack. Rice v. Shinseki, 22 Vet. App. 447 (2009) (finding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation). The determination of the TDIU will, in part, be based on whether the Veteran receives service connection for his claimed transient ischemic attack disability. Therefore, the Board cannot adjudicate the Veteran's TDIU claim until the development requested for the service connection claim is accomplished. Thus, the Board defers consideration of TDIU until further development is complete. The matters are REMANDED for the following action: 1. Obtain any outstand and relevant VA and/or private treatment records. If such exist, associate them with the claims folder. 2. Arrange for a VA examination with an appropriate clinician such as a neurologist to confirm whether the Veteran has any residuals from his claimed transient ischemic attacks. Provide the Veteran's entire electronic claims file to the designated examiner for review. Any electronic VA treatment records referenced by the examiner must be associated with the Veteran's electronic claims file. The reports of any indicated tests or studies must be included with the examination report. Following a review of the claims file and examination, the examiner should clearly identify all residuals of the documented transient ischemic attacks during the entire period on appeal. Then, the examiner should provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the underlying transient ischemic attack or stroke (a) was caused, or (b) is, or has been, aggravated by service-connected atherosclerotic cardiovascular disease. A medical rationale must be provided for all opinions expressed. In preparing his report, the examiner must acknowledge the private treatment records showing a history of strokes and the March 2016 private nexus opinion by Dr. J.N. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.