Citation Nr: A21019325 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 191024-41501 DATE: December 6, 2021 ORDER No revision is warranted based on clear and unmistakable error in the assignment of a 10 percent rating for coronary heart disease status post bypass surgery (hereinafter "a heart disorder") beginning March 1, 2013, and therefore, the claim is denied. FINDING OF FACT The assignment of a 10 percent rating effective March 1, 2013, for a heart disorder in the final September 2013 rating decision was not based on clear and unmistakable error. CONCLUSION OF LAW The criteria for revision of the 10 percent rating assigned for a heart disorder beginning March 1, 2013, have not been met. 38 C.F.R. §§ 3.105(a), 4.104, Diagnostic Code 7017; Russell v. Principi, 3 Vet. App. 310 (1992). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to January 2006. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review dated on or after February 19, 2019. This claim comes to the Board of Veterans' Appeals from a June 2019 rating decision. In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Relevant Procedural History By way of history, service connection for ischemic heart disease (IHD) was granted in a September 2013 rating decision, and a noncompensable rating was assigned from August 27, 2012, and prior to November 6, 2012; a 100 percent rating was assigned from November 6, 2012, and prior to March 1, 2013, and a 10 percent rating is in effect from March 1, 2013, to the present. The Veteran did not appeal the September 2013 rating decision and no new and material evidence was submitted within the appeal period; therefore, it is final. The Veteran's claim was received in June 2019. His representative has argued that the 10 percent rating is clear and unmistakable error (CUE) and that the September 2013 and April 2016 examinations show the Veteran's condition is worse than the assigned rating and that his impairment should be 100 percent. See June 2019 Correspondence; see also October 2019 Brief. Legal Criteria Once a decision that establishes an assigned rating becomes final, the only way that such a decision can be revised is if it contains CUE. Rudd v. Nicholson, 20 Vet. App. 296 at 300 (2006) (holding that any other result would vitiate the rule of finality); see also DiCarlo v. Nicholson, 20 Vet. App. 52 (2006) (stating there is no such procedure as a freestanding challenge to the finality of a VA decision). In other words, if there is disagreement as to the assigned rating in an AOJ decision, it must be timely appealed (within one year of notice of the rating decision). In cases where this is not done, only a finding of CUE could enable a higher rating. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.) (holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). In Russell v. Principi, 3 Vet. App. 310 (1992), the Court of Appeals for Veterans Claims (Court) set forth a three-pronged test for determining when there is CUE present in a prior rating decision. These are (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. Id. at 313-14. It is further noted that any claim of CUE must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE, the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). In order to demonstrate CUE, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. Bustos, 179 F.3d at 1381. Factual Background and Analysis The Veteran's representative is arguing CUE in the September 2013 rating decision and the evaluation of a 10 percent rating for IHD beginning March 1, 2013. See June 2019 Fully Developed Claim and Correspondence. He argues that the Veteran's condition is of such severity that a 100 percent rating is warranted based on the evidence of record. The representative stated that the basis for the AOJ's assignment of a 10 percent rating was a July 2013 examination where the examiner estimated the Veteran's metabolic equivalents (METs) at 1 to 3 and an August 2013 opinion finding the Veteran's left ventricular ejection fraction (LVEF) of 65 percent more closely resembled his level of disability. The representative then argued that an April 2016 examination showed the Veteran's condition was "unmistakably worse than the assigned rating," and that the 2013 and 2016 examination most closely aligns with a 100 percent rating based on workload METs of 3 or less resulting in dyspnea, fatigue, angina, dizziness, or syncope. Following a review of the evidence, the Board finds that the assignment of a 10 percent rating beginning March 1, 2013, in the September 2013 rating decision was not CUE. The June 2013 examination report estimates METs of 1 to 3 with dyspnea and also notes a LVEF of 65 percent, which is normal. Accordingly, an addendum opinion was requested from the examiner to determine which finding (METs vs. LVEF) more accurately portrayed the Veteran's overall disability picture as it pertained to his heart. In an August 2013 addendum opinion, the examiner indicated the LVEF of 65 percent more closely reflects his heart function and corresponds with 10 METs. Thus, under Diagnostic Code 7017, workload of 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, results in a 10 percent disability rating. See 38 C.F.R. § 4.104. At the time of the September 2013 rating decision, the Board finds that adjudicator had accurate facts, correctly applied the law to the facts, and appropriately assigned a 10 percent rating. Here, the representative's argument is a simple disagreement as to how the facts were weighed or evaluated, which does not form a basis for CUE. See Russell, 3 Vet. App. at 313-14. Based on the foregoing, no revision of the assignment of a 10 percent rating for IHD effective March 1, 2013, is warranted. The Board recognizes that the Veteran's representative argues that the April 2016 examination report reflects that the Veteran's disability picture is worse than the assigned 10 percent rating. In this regard, the Veteran's representative appears to misunderstand what CUE is and how it works. As noted above, a determination that there was CUE in a prior final decision must be based on the record and law that existed at the time of the prior adjudication in question, in this case, the September 2013 rating decision. See Russell, 3 Vet. App. at 313-14 (emphasis added). If the Veteran believes that his current disability is worse than the 10 percent rating assigned, he or his representative should file a claim for an increased rating on the appropriate form prescribed by the Secretary. As discussed above, a CUE claim carries a very high burden of proof, which had not been met in the case at hand. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.