Citation Nr: A19001580 Decision Date: 09/26/19 Archive Date: 09/26/19 DOCKET NO. 190813-19384 DATE: September 26, 2019 ORDER An October 2015 rating decision, which assigned an initial rating of 10 percent for ischemic heart disease (IHD), was clearly and unmistakably erroneous; and a 100 percent rating for IHD is assigned, effective July 23, 2015. FINDINGS OF FACT 1. An October 2015 rating decision granted an initial 10 percent disability rating for the Veteran’s IHD, even though the evidence showed a workload of 1-3 metabolic equivalent of task. This rating decision was final and binding at that time since the Department of Veterans Affairs issued written notification to the Veteran. 2. In January 2019, the Veteran raised the issue of clear and unmistakable error in the prior October 2015 rating decision finding that a 100 percent rating for IHD should have been assigned. 3. The October 2015 rating decision was clearly and unmistakably based on incorrect application of the regulations in effect at the time; and the commission of the error, at that time, would have manifestly changed the outcome of the decision at issue. CONCLUSION OF LAW The October 2015 rating decision granting a 10 percent disability rating for the Veteran’s IHD was clearly and unmistakably erroneous, and a 100 percent rating is assigned, effective July 23, 2015. 38 U.S.C. §§ 1155, 5109A; 38 C.F.R. §§ 3.105, 3.344, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the rating decision on appeal was issued in February 2019. In April 2019, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran selected the Higher-Level Review lane when he opted in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Accordingly, the April 2019 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Whether there was clear and unmistakable error in an October 2015 rating decision, which assigned an initial rating of 10 percent for IHD Generally, VA is permitted to revise a final and binding rating decision if it determines that the decision contained CUE. 38 C.F.R. § 3.105(a). “A decision of a duly constituted rating agency... shall be binding on all field offices of [VA] as to conclusions based on the evidence on file at the time VA issues written notification.” 38 C.F.R. § 3.104 (a); Smith v. Brown, 35 F.3d 1516, 1521 (Fed. Cir. 1994) (describing § 3.104(a) as the “companion” regulation to § 3.105(a)). In this case, VA issued an October 2015 rating decision granting an initial 10 percent disability rating for the Veteran’s IHD. The October 2015 rating decision was final and binding at that time since VA issued written notification. “A final decision is entitled to a strong presumption of validity.” Berger v. Brown, 10 Vet. App. 166, 169 (1997). For VA to establish CUE in a prior final decision, it must show that: (1) the adjudicator either ignored the correct facts of record or incorrectly applied statutes or regulations in effect at the time; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or the law was applied; and (3) the commission of the alleged error, at that time, manifestly changed the outcome of the decision at issue. Hime v. McDonald, 28 Vet. App. 1, 6 (2016). It is well-established that the error must be based on the facts and the law as they existed at the time of the challenged decision. Pierce v. Principi, 240 F.3d 1348, 1354 (2001). For an error of fact or law to be undebatable, “no reasonable factfinder” could have come to the same conclusion that [] the RO... did based on the evidence as it existed at that time.” Joyce v. Nicholson, 19 Vet. App. 36, 48 (2005). As indicated, an October 2015 rating decision assigned an initial rating of 10 percent for the Veteran’s IHD under Diagnostic Code 7005. 38 C.F.R. § 4.104, Diagnostic Code 7005. Under Diagnostic Code 7005, a 10 percent rating is assigned where the evidence shows heart disease resulting in workload of greater than 7 METs but no greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is assigned where the evidence shows heart disease resulting in workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent rating is assigned where the evidence shows heart disease resulting in 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. A highest 100 percent rating is assigned where the evidence shows heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Evidence of record at the time of the October 2015 rating decision included, in pertinent part, a September 2015 VA examination report, which noted that the Veteran had dyspnea, fatigue, and dizziness, based an interview-based METs test at the level of 1-3 METs, equivalent with activities such as eating, dressing, taking a shower, and slow walking. The examiner found that the limitation in METs level was due to multiple medical conditions including the heart condition; and that it was not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The rationale was that the Veteran’s echocardiogram clearly showed the amount of cardiac pathology. A September 2014 echocardiogram showed left ventricular ejection fraction of 65 percent. In January 2019, the Veteran raised the issue of clear and unmistakable error in the prior October 2015 rating decision finding that a 100 percent rating for IHD should have been assigned. Based on a review of the facts as they existed at the time, the Board finds that it is undebatable that a clear and unmistakable error was made in the prior October 2015 rating decision assigning an initial rating of 10 percent for IHD. The medical evidence showed an METs level of 1-3 resulting in dyspnea, fatigue, and dizziness. To the extent that the examiner determined that the METs level was attributable to the heart condition in addition to other conditions, the examiner found that it was not possible to accurately estimate the percent of METs limitation attributable to each medical condition. VA law in effect at the time of the 2015 rating decision notes that when it is not possible to separate the effects of the service-connected disability from the non-service-connected disability, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998). The October 2015 rating decision was clearly and unmistakably based on incorrect application of the regulations in effect at the time; and the commission of the error, at that time, would have manifestly changed the outcome of the decision at issue. In this case, a reasonable factfinder could not determine that the Veteran’s service-connected IHD resulted in a METs level of greater than 3 or less resulting in dyspnea, fatigue, and dizziness. Accordingly, the criteria for VA to establish CUE in a prior final decision have been met. Hime, 28 Vet. App. at 6. Based on a review of the evidence and the applicable laws and regulations, the Board finds that October 2015 rating decision assigning an initial rating of 10 percent for IHD was clearly and unmistakably erroneous; and a 100 percent rating is assigned, effective July 23, 2015. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond 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.