BVA9505395 DOCKET NO. 93-05 312 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to restoration of a 60 percent evaluation for coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The veteran served on active duty in the Armed Forces from June 1973 to May 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1991 rating decision from the San Francisco, California, Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in August 1991. A statement of the case was issued in September 1991. A substantive appeal was received in July 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that her 60 percent disability rating for service-connected coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four, should be restored, as she has suffered three heart attacks and she has frequent attacks of dizziness and shortness of breath. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports restoration of a 60 percent evaluation. FINDINGS OF FACT 1. In an April 1984 rating action, service connection for coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four, was granted at a level of 60 percent disabling, effective from May 1, 1984. 2. The veteran was granted a 100 percent evaluation under 38 C.F.R. § 4.30 in March 1990 when she was hospitalized for severe chest pain and coronary artery bypass surgery times four was performed. 3. Following the expiration of the one year's convalesence, in a June 1991 rating action, the disability rating was reduced to 30 percent, effective from May 1, 1991. 4. During the aforementioned period when the 60 percent rating was in effect, the veteran's coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four, was manifested by exertional angina, dyspnea, leg cramps at night and dependent edema, left atrial enlargement, an old lateral infarct, an anterolateral infarct, normal jugular venous pressure and normal heart sounds. 5. The medical evidence of record does not reflect that the veteran's coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four, had undergone sustained material improvement from May 1, 1991. CONCLUSION OF LAW The 60 percent evaluation for coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four, is restored. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.344, 4.104, Diagnostic Code 7017-7005 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION 38 C.F.R. § 3.344(a)(c) (1993) requires that rating agencies will handle cases affected by change of medical findings or diagnoses so as to produce the greatest degree of stability of disability evaluations consistent with the laws and the VA regulations governing disability compensation and pension. The entire record of examinations and medical-industrial history must be reviewed to ascertain whether the most recent VA examination is full and complete, including all special studies indicated, as a result of examination in the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction if the rating has continued for five years or more at the same level, as is the case here. Even if material improvement in the physical condition is clearly reflected, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a)(c). In regard to the criteria for the reduction of disability evaluations, when a veteran is in receipt of a disability rating for more than 5 years, that evaluation may not be reduced on the basis of one examination unless all the evidence of record establishes that her condition has undergone sustained material improvement. 38 C.F.R. § 3.344(a),(c) (1993). See Lehman v. Derwinski, 1 Vet.App. 339 (1991); Karnas v. Derwinski, 1 Vet.App. 308 (1991). In addition, VA regulations also provide that this improvement must be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a),(c) (1993). Service medical records reveal that the veteran was found to have hypertension in December 1980 with readings of 158/112 and 156/110. The veteran's medical examination pursuant to separation from service, dated in May 1982, indicated diastolic blood pressure reading of 90 and 100. In a June 1983 rating decision, the RO granted service connection for hypertension and assigned a 20 percent rating. In October 1993, the veteran suffered a myocardial infarction. After a temporary total disability rating from October 1983 to April 1984, the veteran was granted a 60 percent rating for myocardial infarction; hypertension, effective from May 1, 1984. This rating action was based on a VA compensation examination performed in March 1984. The veteran presented with one or two attacks of angina per week on exertion which were relieved with nitroglycerin. Examination revealed blood pressure readings of 130/90 and 114/90. The chest was clear to percussion and auscultation and no rales were noted. No cardiac enlargement or arrhythmia was noted. An electrocardiogram (EKG) revealed: normal sinus rhythm, a nonspecific intraventricular conduction disturbance, anterolateral myocardial infarction, probable ventricular aneurysm, and abnormalities suggesting myocardial ischemia and injury. An x-ray evaluation revealed a normal chest. A diagnosis of status post myocardial infarction with EKG changes was given. A September 1985 rating decision reduced the veteran's disability rating to 30 percent disabling, effective May 1984, however, a December 1985 rating decision restored her 60 percent rating, effective May 1984. In January 1986, the veteran suffered an acute myocardial infarction. That same month, the veteran underwent cardiac catheterization and coronary angioplasty. A May 1986 rating decision reduced the veteran's disability rating to 30 percent disabling, effective August 1986, however, a May 1987 rating decision restored her 60 percent rating, effective August 1986. In March 1990, the veteran was hospitalized due to severe chest pain. Cardiac catheterization revealed severe multiple vessel disease and coronary artery bypass graft surgery times four was performed that same month. The rating decision of June 1991 granted a temporary total disability rating from March 1990 to May 1990, pursuant to 38 C.F.R. § 4.30 (1993), and a 100 percent disability rating for one year after the initial grant of the temporary total rating following hospital discharge from May 1990 to May 1991. See 38 C.F.R. § 4.104, Diagnostic Code 7017 Note (1993). This rating decision also reduced the 60 percent evaluation for coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four, to 30 percent disabling, effective on May 1, 1991. The reduction was based on VA examinations of April and May 1991. The report of the April 1991 examination indicates that the veteran complained of fatigue and neck strain. Physical findings revealed that the chest was clear and the heart sounds were of good quality. An EKG revealed and old anterior and inferior wall infarction. The following diagnoses were given: history of anterior wall myocardial infarction; post angioplasty; post five vessel coronary artery bypass graft; and mild hypothyroidism. At the May 1991 VA examination, the veteran presented with exertional angina, dyspnea when walking two level blocks and one flight of stairs, leg cramps at night and dependent edema. Examination revealed normal jugular venous pressure and heart sounds. No carotid bruits, thrills, murmurs or gallops were noted. An EKG revealed: a normal sinus rhythm, left atrial enlargement, an old lateral infarct and an anterolateral infarct. An x-ray evaluation was conducted and compared with a June 1986 study. It revealed normal pulmonary vascular markings without evidence of interstitial edema. No effusions or focal infiltrates were found and the heart appeared within normal limits. In a VA progress note, dated in April 1992, a suspected right thalamic lacunar infarct, probably related to severe atherosclerotic disease, was noted. The 60 percent evaluation at issue had been in effect for more than five years at the time of the June 1991 rating decision which reduced the evaluation to 30 percent. Accordingly, the rating could not be reduced on any one examination, except in those instances where all the evidence of record clearly warranted the conclusion that sustained improvement of the veteran's coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four had been demonstrated. 38 C.F.R. § 3.344(a), (c); see Lehman, supra. A review of the evidence upon which the rating reduction was based, as well as the subsequent evidence of record, reveals that there has not been sustained improvement in light of the complaints of the veteran, the positive EKG findings and the subsequent VA progress note indicating that the veteran had severe atherosclerotic disease. In addition, the rating decision in question did not determine if there had been "sustained improvement" and if it was "reasonably certain that the improvement will be maintained under the ordinary conditions of life" as required by 38 C.F.R. § 3.344(a). Under the circumstances, the Board concludes that sustained material improvement in the veteran's coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four, under the ordinary conditions of life was not demonstrated when she was examined by VA in May 1991 and that the rating reduction of June 1991 predicated thereon was invalid. Accordingly, a 60 percent evaluation for coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four is restored, effective from May 1, 1991. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.344(a),(c); 4.104, Diagnostic Code 7017-7004. ORDER A 60 percent evaluation for coronary artery disease, status post myocardial infarction, times two, and status post coronary bypass grafting, times four, is restored, retroactive to the effective date of the reduction, May 1, 1991, subject to controlling regulations governing the payment of monetary awards. EUGENE A. O'NEILL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 160 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.