Citation Nr: 23019331 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 19-09 680 DATE: March 29, 2023 ORDER The discontinuance of the 100 percent disability rating for coronary artery disease, status post coronary artery bypass surgery (hereinafter CAD), effective September 1, 2016, was proper. REMANDED Entitlement to an evaluation in excess of 10 percent from September 1, 2016, to February 15, 2017, for CAD is remanded. Entitlement to an evaluation in excess of 30 percent from February 16, 2017 for CAD is remanded. FINDINGS OF FACT 1. The Veteran underwent coronary artery bypass surgery in October 2015, for which he was awarded a temporary 100 percent rating, assignable during and for three months following the surgery. 2. The procedural requirements of 38 C.F.R. § 3.105 (e) and (i) were appropriately followed in this case. 3. The March 2016 VA examination report shows improvement in the Veteran's CAD without evidence of chronic congestive heart failure; a workload of 3 METS or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, an ejection fraction of less than 30 percent. CONCLUSION OF LAW The discontinuance of the Veteran's 100 percent disability for CAD status post coronary artery bypass was proper. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.104, DC 7017. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active-duty service with the United States Navy from August 1968 to July 1972. Among other commendations, the Veteran was awarded the Vietnam Service Medal and a Vietnam Campaign Ribbon. These matters are before the Board of Veterans' Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Procedural History The Veteran was granted service connection for CAD in an October 2015 rating decision and awarded 10 percent, with an effective date of July 6, 2015. A 100 percent rating was awarded, effective October 18, 2015. In a June 2016 rating decision, the RO reduced the Veteran's 100 percent rating for CAD to 10 percent, effective September 1, 2016. In a July 2016 rating decision, the RO found clear and unmistakable error (CUE) in assigning the effective date for service connection for CAD and awarded an earlier effective date of May 27, 2015. The Board finds that the Veteran's May 2017 NOD was appealing the June 2016 reduction of the CAD rating from 100 to 10 percent, and not the July 2016 award of the May 27, 2015 effective date for service connection for CAD. Notably, he only checked the "Evaluation of Disability" and not the "Effective Date of Award" box. The Board acknowledges that the March 2019 Statement of the Case (SOC) included a claim for entitlement to an earlier effective date for service connection for CAD, and that the Veteran checked the "appealed all of the issues" box on the April 2019 Substantive Appeal VA Form 9. However, the Veteran's attorney's January 2022 Memorandum of Law acknowledges that the RO corrected the effective date for the grant of service connection and does not include any arguments for an earlier effective date for service connection. Rather, his arguments focus on an increased rating from September 2016. For these reasons, the Board finds that the issue of entitlement to an effective date earlier than May 27, 2015 for service connection for CAD is not on appeal. The In April 2021 the Veteran filed a claim for an increased rating for his diabetes mellitus type II only. In October 2021, the RO issued a rating decision which denied an increased rating for CAD. In January 2022 the Veteran filed a VA Form 20-0996 Request for Higher-Level Review (HLR). An informal conference on the HLR claim in February 2022 found that the issue of an increased rating for CAD was under the jurisdiction of the legacy appeal system and not the AMA and that the October 2021 rating decision should not have been issued. Correspondence sent to the Veteran in February 2022 confirmed the January 2022 HLR was not appropriate and the issue of an increased rating for CAD would remain in the legacy system and under the jurisdiction of the Board until a Board decision was issued. In an April 2019 VA Form 9, the Veteran requested a pre-determination hearing/hearing before the Board regarding the current claim on appeal. In subsequent correspondence, dated January 2022, the Veteran withdrew his prior request for a hearing. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702. The discontinuance of the 100 percent disability rating Procedurally, an October 2015 rating decision granted service connection for CAD at 10 percent effective July 6, 2015, and 100 percent as of October 18, 2015, the date on which the Veteran underwent coronary artery bypass surgery. The RO noted that since there was a likelihood of improvement, the assigned rating was not considered permanent and was subject to a future review examination. The November 2015 notice letter indicated that an examination would be scheduled for three months post-surgical procedure to determine the current severity of the disability. The Veteran was initially evaluated under Diagnostic Code 7017, under which a 100 percent rating is assigned for three months following hospital admission for coronary bypass surgery. After three months following hospital admission for surgery, coronary artery disease is evaluated under the same rating criteria as set forth in Diagnostic Code 7005. In accordance with 38 C.F.R. § 4.104, Diagnostic Code 7017, the RO scheduled a VA examination in March 2016 to determine the nature and severity of the Veteran's CAD, status post coronary artery bypass graft. A March 2016 rating decision proposed to reduce the disability rating from 100 to 10 percent. A March 2016 VA letter notified the Veteran of this proposed action and his rights. A June 2016 rating decision replaced the 100 percent rating with a 10 percent rating, effective September 1, 2016. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service- connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. This rating decision was provided in March 2016. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. This correspondence was provided on March 28, 2016, and sent to the Veteran. The RO notified the Veteran of the proposed reduction in benefits and his due process rights to include that no action would be taken on the proposed reduction for 60 days following the date of the notification letter, and that he should provide evidence showing that the proposed reduction is not warranted. The Veteran did not request a predetermination hearing. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). This rating decision was issued in June 2016, and provided an effective date of the reduction as of September 1, 2016. As discussed above, the RO complied with the notice procedures required under 38 C.F.R. § 3.105(e). Notably, the Veteran has not asserted that these procedural provisions were not followed. Accordingly, the Board finds that the proper procedure was followed in this matter. The Board notes that the appealed issue is not a formal reduction under the substantive provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344. This is so because the provisions of Diagnostic Code 7017 contain a temporal element for assignment of a 100 percent rating for coronary bypass surgery. Where a diagnostic code requires the assignment of a 100 percent rating for a finite period of time, followed by the requirement that the disorder thereafter be rated based on residuals, the assignment of a lower rating based on those residuals does not constitute a reduction. See Tatum v. Shinseki (Tatum I), 24 Vet. App. 139, 143 (2010); Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). The Board need only determine if the procedural requirements of 38 C.F.R. § 3.105 (e) were met and if the reduction was by operation of law. As discussed above, the Board finds that the procedural requirements were properly followed in this case and the alleged reduction was proper given that, when the reduction occurred, more than three months had passed since the Veteran's October 2015 coronary bypass surgery. There is also nothing in the record to support that the criteria for a continued 100 percent rating for CAD status post coronary bypass surgery were otherwise met under Diagnostic Code 7005. In this regard, the March 2016 VA examination report does not show that the Veteran had chronic congestive heart failure; a workload of 3 METS or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. Instead, the report indicates that the Veteran did not have chronic congestive heart failure, and that his heart condition was manifested by a workload of 5 to 7 METS and an ejection fraction of at least 60 percent. Thus, based on a review of the record, the Board finds that the discontinuance of the Veteran's 100 percent rating for his CAD, status post coronary bypass surgery, was proper. The issue of entitlement to a higher rating is addressed in the Remand section below. REASONS FOR REMAND Entitlement to an evaluation in excess of 10 percent from September 1, 2016, to February 15, 2017, for CAD The Veteran contends he is entitled to an evaluation in excess of 10 percent for his CAD from September 1, 2016, to February 15, 2017, alleging that he has dizziness, shortness of breath, and symptoms worse than before his 2015 heart surgery. Procedurally, the Veteran's CAD was granted a 10 percent disability rating as of September 1, 2016, in a June 2016 rating decision. He filed a timely NOD in May 2017 that disagreed with the 10 percent disability rating. A rating decision issued simultaneously with his SOC in March 2019 granted the Veteran a disability rating of 30 percent for his CAD as of February 16, 2017. The SOC only addressed the entitlement to a 30 percent disability rating for CAD as of February 16, 2017 and thereafter. The RO has failed to issue an SOC to address the Veteran's timely NOD, specifically the Veteran's disability rating for his CAD from September 1, 2016, to February 15, 2017. Therefore, the Board is required to remand the issue for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999); 38 U.S.C. § 7105; 38 C.F.R. §§ 19.26, 19.29, 19.30. Entitlement to an evaluation in excess of 30 percent as of February 16, 2017, for CAD As the Veteran is asserting entitlement to an increased evaluation for his CAD in excess of 10 percent for the period of September 1, 2016, to February 15, 2017, and in excess of 30 percent thereafter, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following the indicated evidentiary development. The matters are REMANDED for the following actions: (Continued on the next page) ? 1. The RO should provide the Veteran and his representative a SOC on the issue of entitlement to an evaluation in excess of 10 percent from September 1, 2016, to February 15, 2017, for CAD. The Veteran should be given the opportunity to thereafter perfect an appeal on this issue by filing a timely Substantive Appeal, VA Form 9. The claim will thereafter be subject to appellate review only if the appeal has been properly perfected. 2. Following completion of the foregoing, the RO should review the record, perform any necessary development, and readjudicate the claims on appeal. If any appeal is denied, the RO should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Veteran and his representative an opportunity to respond, and return the case to the Board. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teich, 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.