Citation Nr: 22057166 Decision Date: 10/11/22 Archive Date: 10/11/22 DOCKET NO. 13-14 203 DATE: October 11, 2022 ORDER Restoration of the 60 percent rating for coronary artery disease (CAD), effective July 1, 2016, is granted. Entitlement to a rating in excess of 60 percent for CAD is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. At the time of the reduction, the 60 percent rating for CAD had been in effect for less than five years. 2. The evidence of record does not show sustained improvement of CAD since the 60 percent rating was assigned for the disability, effective October 1, 2012. 3. Throughout the pendency of the appeal, the Veteran's CAD has not involved chronic congestive heart failure; workload of 3 METs or less; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 4. The Veteran's service-connected disabilities, including CAD, posttraumatic stress disorder (PTSD), low back disability, and associated radiculopathy, preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The reduction in rating from 60 percent to 10 percent for coronary artery disease, effective July 1, 2016, was not proper, and restoration is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.7, 4.104, Diagnostic Code 7017. 2. The criteria for a rating in excess of 60 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.6, 4.104, Diagnostic Code 7017. 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to September 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at June 2019 and March 2021 hearings before Veterans Law Judges (VLJ) who are no longer employed at the Board. In a May 2021 letter, the Board notified the Veteran that the VLJ he testified before in March 2021 was unavailable to decide the case and informed him that he could elect to have another hearing before a different VLJ. The Veteran and his representative did not respond to the May 2021 letter regarding whether the Veteran wished to appear at a hearing before another Veterans Law Judge. Therefore, the claim will be considered based on the evidence of record. This matter was last before the Board in May 2019 and July 2021, when it was remanded for further development. 1. Entitlement to a disability rating in excess of 10 percent for service-connected CAD for the period prior to August 6, 2021, and in excess of 60 percent thereafter, to include the propriety of the reduction from 60 percent to 10 percent (effective July 1, 2016). The Veteran disagrees with the reduction of his rating for CAD from 60 percent to 10 percent, effective July 1, 2016. In any case involving a rating reduction, the fact finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). 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 evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Furthermore, if there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. The Board notes that VA benefits recipients are to be afforded greater protections in instances where a rating has been in effect at the same level for more than five years. 38 C.F.R. § 3.344(a)-(c). In this case, the Veteran was granted the 60 percent rating for CAD effective starting October 1, 2012. The rating was then reduced to 10 percent, effective July 1, 2016. As such, the Veteran's rating was in effect at the same level for less than five years, and thus the greater protections for benefits in effect for longer than five years are inapplicable in this case. See 38 C.F.R. § 3.344(c). In this case, the Veteran's rating was reduced to 10 percent for his CAD, effective July 1, 2016, based on the findings of a September 2015 VA examination. The examination report showed that the Veteran met the 10 percent criteria as his disability resulted in a workload of greater than 7 METs (metabolic equivalent of task) but not greater than 10 METs (which is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging), which results in dyspnea, fatigue, angina, dizziness, or syncope. However, in this same examination, the report indicates the Veteran stated he "gets out of breath easily," has to walk up stairs slowly, and loses his breath when he walks or moves fast, which is inconsistent with the interview-based findings of greater than 7 METs but not greater than 10 METs. A March 2016 VA examination indicated findings and symptom reports similar to those in the September 2015 examination. In addition, VA treatment records throughout the file and during the appeal period consistently note the Veteran's complaints regarding chronic shortness of breath even with mild exertion, dizziness upon position changes, and lightheadedness when rising too quickly. The Board notes that should there be any doubt as to whether sustained improvement has been achieved, the reduction in the disability rating is not to be effectuated. Based on the foregoing, the Board finds that there has not been a showing of sustained improvement with regard to the Veteran's CAD since he was rated at 60 percent. As such, the Board finds that the AOJ's reduction in rating was improper, and restoration of the 60 percent rating for CAD, effective July 1, 2016, is warranted. Increased Rating By virtue of this decision, the Board notes that the Veteran has a 60 percent rating throughout the appeal period. Regarding an increased rating, the Veteran's CAD is rated under Diagnostic Code (DC) 7017. Under this DC, a 100 percent evaluation is warranted for three months following hospital admission for coronary bypass surgery. Thereafter, a 100 percent evaluation is warranted where there is congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of less than 30 percent. A 60 percent evaluation is warranted where 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; there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. In this regard, one MET is defined as 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 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. With the above criteria in mind, the Board finds that the most probative evidence of record are the Veteran's VA examinations, and they are uniform in reporting, after a review of the record on appeal and examinations, that his CAD does not cause congestive heart failure. In fact, none of his VA heart conditions examinations show congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or a left ventricular dysfunction with an ejection fraction of less than 30 percent. In addition, these findings are not contradicted by any other medical evidence of record. The Board also finds that, while treatment records document the Veteran's complaints and treatment for CAD, nothing in these treatment records show his adverse symptomatology to be worse than what was the current rating reflects. Furthermore, the Board finds that while the Veteran is competent and credible to report on his observable symptoms, he is not competent to diagnose his METs, ejection fraction, and/or congestive heart failure because these are complex medical questions and he does not have the required medical training. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the most probative evidence of record shows that the Veteran's CAD is not manifested by congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent at any time during the pendency of the appeal. Accordingly, the Board finds that a rating in excess of 60 percent for CAD is not warranted under DC 7017 at any point during the pendency of the appeal, and the claim is denied. This case raises no other issues. 2. Entitlement to TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Additional factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In this case, the Veteran contends that he is unable to secure and follow substantially gainful employment due to his service-connected disabilities. By virtue of this decision, he is currently rated at 60 percent for his CAD, effective October 1, 2012; 50 percent for PTSD, effective June 3, 2021; radiculopathy of the bilateral lower extremities (sciatic nerve), rated at 20 percent each, effective September 30, 2015; tinnitus at 10 percent, effective September 11, 2009; low back disability, rated at 10 percent, effective June 25, 2012; radiculopathy (femoral nerve) of bilateral lower extremities, chronic tonsilitis, surgical scars, bilateral hearing loss, and atrial fibrillation, all rated at noncompensable. Thus, the Veteran meets the schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). The remaining question, therefore, is whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. In his June 2020 TDIU application, the Veteran reported last working in December 2016 and having to end his employment particularly due to his service-connected CAD and low back disability. The record shows the Veteran worked for 19 years in foster care and ran his own group home for four years before stopping work in 2016. VA back examinations throughout the record, including from October 2015 and September 2015, note that the Veteran's disability would impact his ability to work, particularly during flare ups when it was noted that the Veteran would not be able to lift at all, walk unless absolutely needed, and stand for more than five minutes at a time. Furthermore, the June 2021 PTSD examination notes symptoms such as low motivation, low energy, depression, chronic sleep impairment, diminished interest in significant activities, feelings of detachment/estrangement from others, hypervigilance, exaggerated startle response, sleep disturbances, suicidal ideation, difficulty in establishing and maintaining effective work and social relationships, tearfulness, and issues with concentration and anxiety. The June 2021 PTSD examiner further noted that the Veteran's social and occupational functional difficulties are attributable to a combination of his health difficulties and depressed mood. Moreover, the Veteran's VA heart examinations throughout the record indicate symptoms such as dyspnea/shortness of breath upon mild exertion, having to walk up stairs slowly, getting out of breath when moving/walking fast, and experiencing dizziness and lightheadedness when rising too quickly. The Veteran's condition also requires continuous medication. His rating for his heart condition also shows the Veteran METs was found to be consistent with activities of light yard work and brisk walking and is the lowest activity level at which the Veteran experiences dyspnea, fatigue, and dizziness. In addition, the examiners noted that the Veteran's heart condition does impact his ability to work, as he would have difficulty with walking and running for long periods, ascending/descending stairs, lifting due to low endurance, easy fatigability, and weakness. Finally, the Board finds that the Veteran's prior work history working in foster care and operating his own group home would likely include a significant level of interaction with other individuals. The Board finds it reasonable to believe that his PTSD and related psychiatric symptoms including depression, anxiety, irritability, and increased arousal would reasonably result in significant difficulty functioning in an occupational environment consistent with his past employment because these symptoms, and his difficulty interacting with others, would likely negatively impact interactions with people at work. Further, his CAD and low back disability (and associated radiculopathy of lower extremities) pose significant physical limitations working in a group home. The Board further notes that there is no medical evidence or opinion that contradicts the submitted lay statements, examination reports, and the Veteran's assertions regarding his symptoms and their impact on his ability to secure and maintain employment. Based on the foregoing, the Board finds that the Veteran's functional limitations due to his service-connected disabilities, including his CAD, low back disability (and associated radiculopathy), and PTSD symptoms would preclude him from engaging in substantially gainful employment when considered with his education level and occupational experience. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise with respect to the issue of whether the Veteran is capable of securing and following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, TDIU is warranted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.