Citation Nr: 0403497 Decision Date: 02/06/04 Archive Date: 02/11/04 DOCKET NO. 00-22 690A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the May 15, 1974, decision of the Board of Veterans' Appeals (Board), which denied service connection for defective hearing. (The issue of entitlement to an effective date earlier than November 30, 1992, for service connection for tinnitus, will be the subject of a separate decision of the Board.) REPRESENTATION Moving party represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD N. N. Bland, Associate Counsel INTRODUCTION The Moving Party had active service from September 1968 to June 1970, to include combat service in the Republic of Vietnam. In a letter received in November 2000, the Moving Party alleged CUE in a May 15, 1974 Board decision. In June 2001, the Board wrote to the Moving Party, advising him of the statutory authority and citation to the Code of Federal Regulations for rules relating to CUE requests (38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400). In March 2002, the Board issued a decision denying the Moving Party's motion. The Moving Party subsequently appealed this decision to the Court of Appeals for Veterans Claims (Court). In June 2003, the Court vacated the Board's March 2002 decision and remanded the case to the Board for proceedings consistent with a Joint Motion for Remand. FINDINGS OF FACT 1. The May 1974 Board decision denied service connection for defective hearing. 2. The Board did not consider a doctors opinion linking current defective hearing to service. 3. The Board had no basis of rejecting the doctor's opinion. CONCLUSION OF LAW The May 1974 Board decision contained CUE in failing to grant service connection for defective hearing. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Pertinent Criteria A. Service Connection In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and certain chronic diseases become manifest to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). B. CUE Under 38 U.S.C.A. § 7111, the Board has, for the first time, been granted the authority to revise a prior decision of the Board on the grounds of CUE. A claim requesting review under the new statute may be filed at any time after the underlying decision is made. Pursuant to a recently issued opinion of the VA General Counsel, VAOPGCPREC 1-98, 63 Fed. Reg. 31263 (1998), the Board's authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997. See 38 C.F.R. § 20.1400. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411. The motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. 38 C.F.R. § 20.1404(b). The statute and implementing regulations provide that a decision by the Board is subject to revision on the grounds of CUE. If evidence establishes CUE, the prior decision shall be reversed or revised. A request for revision of a Board decision based on CUE may be instituted by the Board on its own motion or upon request of the claimant. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. In the implementing regulation, CUE is defined as: [A] very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). The record to be reviewed for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b)(1). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. 38 C.F.R. § 20.1403(c). Examples of situations that are not CUE are: (1) A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) The Secretary's failure to fulfill the duty to assist. (3) A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has also held that a finding that there was such error "must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one that would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The "benefit of the doubt" rule of 38 U.S.C.A. 5107(b) does not apply to a motion to revise a Board decision due to CUE. 38 C.F.R. § 20.1411(a). II. Factual Background The moving party's service medical records are negative for manifestations, or complaints of hearing loss. Service medical records at the time of the moving party's separation examination in June 1970 show that audiometry testing was not done; his hearing was recorded as 15/15, bilaterally, for whispered voice. The RO first received a claim for VA compensation benefits from the moving party in 1973, accompanied by a November 1972 VA medical statement, indicating that the moving party's hearing was not within satisfactory measurement limits and suggesting further evaluation by an otologist or ear specialist. The RO denied service connection for defective hearing in July 1973. In July 1973, Herbert Kean, M.D., wrote that he had seen the moving party in July 1973 because of hearing loss and tinnitus in both ears. Dr. Kean reported that "an audiogram showed a severe acoustic trauma caused by exposure to loud noises while in the military." Results of the audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 - 65 LEFT 15 10 15 - 50 In October 1973, the RO confirmed the denial of service connection for hearing loss. The moving party submitted a notice of disagreement in October 1973, and the RO issued a statement of the case in December 1973. In May 1974, the Board found that the Moving Party's hearing loss was first reported in November 1972, which was too remote from service. The Board concluded that defective hearing was neither incurred in nor aggravated by service, nor present to the requisite degree within one year following separation from service. III. Legal Analysis Law and regulations governing service connection were in, pertinent part, essentially the same at the time of the May 1974 decision, as they are today. They provided that service connection would be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002) (formerly 38 U.S.C.A. §§ 312, 313); 38 C.F.R. § 3.307, 3.309 (2003). The Board denied the claim for defective hearing on the basis that defective hearing was neither present during active service nor at separation, and that hearing loss was initially diagnosed more than one year subsequent to the Moving Party's separation from service. The Moving Party points out that the Board failed to fully consider Dr. Kean's July 1973 statement in the May 1974 decision. In that decision the Board noted that Dr. Kean had attributed the veteran's hearing loss to acoustic trauma, but failed to note that he had attributed the severe acoustic trauma to loud noises while in the military. The remaining question is whether this failure manifestly changed the outcome. That is, is it absolutely clear that a different result would have ensued? The Moving Party's assertion that the Board failed to consider Dr. Kean's statement qualifies as more than a mere disagreement of the Board's weighing of facts before it. The assertion instead questions whether the correct facts were before the Board in May 1974. In its previous decision, the Board found that the 1974 decision could have found Dr. Kean's opinion to be of limited probative value because he provided no rationale for the opinion, he based his opinion on a history reported by the veteran, and that there was negative evidence in the form of the silent service medical records and absence of evidence of hearing loss in the years prior to service. In the Joint Motion, VA's General Counsel agreed that Dr. Kean's opinion could not have been rejected based on the lack of a review of the records, and that the Board could not have rejected Dr. Kean's opinion on the basis of the negative evidence. Cf. Maxson v. Principi, 230 F.3d 1330 (Fed. Cir. 2000). The Board is bound by such agreements of the General Counsel. See 38 U.S.C.A. § 7104(c) (West 2002) (providing that the Board will be bound in its decisions by instructions of the Secretary); Burke v. Brown, 8 Vet. App. 376 (1995) (per curium); Bond v. Brown, 2 Vet. App. 376 (1992) (noting that the General Counsel is VA's chief legal officer, and holding that agreements of the General Counsel override Board findings). Since the Board in its 1974 decision could not have used negative evidence, or the lack of a review of the record to reject Dr. Kean's opinion; it would have been bound to accept the opinion and grant service connection. The Board would have been bound to accept Dr. Kean's conclusion relating hearing loss to service, and a different result would have ensued. Thus, the Board's failure to consider the correct evidence was outcome determinative. Accordingly, the Board must find that the 1974 decision was the product of CUE. ORDER The motion for revision of the May 1974 Board decision on the grounds of CUE is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION ON YOUR MOTION FOR REVIEW FOR CLEAR AND UNMISTAKABLE ERROR The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision on your motion for the Board to review one or more of its final decisions for clear and unmistakable error (CUE). If you are satisfied with the outcome of this decision, you do not need to do anything. However, if you are not satisfied with this decision, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision. None of these things is mutually exclusive -you can do all three at the same time if you wish. However, if you file a Notice of Appeal with the Court and motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. There is no time limit for filing a motion for reconsideration or a motion to vacate with the Board. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision. See 38 C.F.R. 20.1090 --20.1003. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Address your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. VA FORM JUN 2003(R S) 4597b Page 1 Continued How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence submitted by or on behalf of the appellant. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, you should write directly to the Court for information. Upon request, the Court will provide you a state-by-state listing of persons admitted to practice before the Court who are available to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003(R S) 4597b Page 2