Citation Nr: 20007066 Decision Date: 01/28/20 Archive Date: 02/13/20 DOCKET NO. 18-48 080 DATE: January 28, 2020 ORDER The reduction for vasovagal syncope with bradycardia and pacemaker from 100 percent disabling to 10 percent disabling was proper; restoration is denied. FINDING OF FACT 1. In a July 2017 rating decision, the RO assigned a 100 percent rating for vasovagal syncope with bradycardia and pacemaker, effective June 28, 2017. 2. In an August 2017 rating decision, the RO proposed to reduce the disability rating for vasovagal syncope with bradycardia and pacemaker from 100 percent to 10 percent based on a finding of clear and unmistakable error (CUE) in the July 2017 rating decision; the RO promulgated the proposed reduction in an April 2018 rating decision. 3. The finding of CUE was valid because the statutory or regulatory provisions extant at the time of the July 2017 rating decision were incorrectly applied to the medical facts that existed at the time of the prior adjudication, and the error was undebatable and manifestly changed the outcome. CONCLUSION OF LAW The criteria for restoration of a 100 percent rating for vasovagal syncope with bradycardia and pacemaker have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104 Diagnostic Code (DC) 7011, 7015. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2003 to June 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in October 2019. 1. Whether the reduction of vasovagal syncope with bradycardia and pacemaker from 100 percent disabling to 10 percent disabling was proper In an August 2017 rating decision, the RO proposed to reduce the Veteran’s rating from 100 percent to 10 percent, effective July 1, 2018. The RO concluded that there was clear and unmistakable error (CUE) in the July 2017 rating decision that granted a 100 percent rating for vasovagal syncope with bradycardia and pacemaker. The RO explained that this decision contained CUE because the rating specialist did not correctly apply the medical evidence to regulations in place at the time of the rating decision. In an April 2018 rating decision, the RO reduced the Veteran’s rating to 10 percent, effective July 1, 2018. In order to establish clear and unmistakable error, it must be established that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made”; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). Thus, in order to determine whether the July 2017 rating decision contained clear and unmistakable error, the Board must review the evidence which was of record at the time of the July 2017 rating decision. In this regard, the RO reviewed the Veteran’s record and sent the Veteran notice that it proposed to reduce the Veteran’s rating from 100 percent to 10 percent in September 2017. The November 2016 VA examination showed the Veteran had intermittent bradycardia in the previous 12 months, an implanted dual chamber pacemaker, and his workload was greater than seven METs but not greater than ten METs. He also experienced fatigue. His left ventricular ejection fraction (LVEF) was 65 percent. In the July 2017 rating decision, the RO noted that the Veteran had an automatic implantable Cardioverter-Defibrillator (AICD) in place with additional symptoms of LVEF of more than 50 percent and workload of greater than seven METs but not greater than ten METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. After a review of the evidence, the Board concludes that the RO’s finding of CUE in the July 2017 rating decision was correct. The statutory or regulatory provisions extant at that time, specifically the Diagnostic Code, was incorrectly applied to the medical facts that existed at the time of the adjudication, and the error was undebatable and manifestly changed the outcome. Under Diagnostic Code 7011, a 100 percent rating is assigned where the Veteran is shown to have been placed with an AICD. The medical evidence clearly shows that the Veteran does not have an AICD, which he does not dispute. Thus, reduction is the proper remedy. Additionally, the Veteran’s symptoms are appropriately rated 10 percent disabling under the applicable Diagnostic Code 7015 (see 38 C.F.R. § 4.104, Diagnostic Code 7015 (assigning a 10 percent rating for workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication or a pacemaker required)). As illustrated above, the Veteran’s rating for his vasovagal syncope with bradycardia and pacemaker is rated as 10 percent from July 1, 2018. Therefore, the Board must determine whether the reduction from 100 percent to 10 percent followed the proper procedures for implementing a rating reduction. See 38 C.F.R. § 3.105(e). In this regard, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) in reducing the Veteran’s disability rating. The RO issued a letter in September 2017 advising the Veteran of the proposed reduction, his right to present additional evidence within 60 days of receipt of the letter, and his right to request a hearing. In an October 2017 communication, the Veteran requested a hearing before final action to reduce benefits. The Veteran was scheduled for an October 2017 hearing. The Veteran subsequently requested a change of venue for the October 2017 hearing and that hearing was cancelled. Another hearing was scheduled for February 2018. The Veteran subsequently cancelled this hearing. A hearing was scheduled for March 2018. The Veteran did not appear for the hearing. The April 2018 rating decision effectuating the reduction was not issued until the appropriate time period had elapsed, and the effective date of the reduction was in accordance with applicable criteria. The Board therefore finds that the requirements of 38 C.F.R. § 3.105(e) were met. Substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). VA regulation 38 C.F.R. § 3.344 addresses stabilization of disability ratings and VA regulation 38 C.F.R. § 3.343 addresses continuance of total disability ratings. However, because this reduction is based on CUE and not on a finding of a stabilization of a disability evaluation, 38 C.F.R. §§ 3.344, and 3.343 are not applicable. Therefore, the Veteran’s vasovagal syncope with bradycardia and pacemaker is appropriately rated as 10 percent disabling. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.