Citation Nr: 0506205 Decision Date: 03/04/05 Archive Date: 03/15/05 DOCKET NO. 00-13 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than April 13, 1998, for the grant of service connection for bilateral hearing loss, to include the issue of whether there was clear and unmistakable error (CUE) in the September 1989 rating decision that previously denied this claim. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD Michelle Kane, Senior Counsel INTRODUCTION The veteran had active military service from February 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied an effective date earlier than April 13, 1998, for the grant of service connection for bilateral hearing loss. Service connection was granted for this condition in a March 1999 rating decision, and in May 1999 the veteran requested an earlier effective date. As part of the veteran's claim that he is entitled to an earlier effective date, he has argued that the prior denial of the claim was erroneous. A claim of clear and unmistakable error (CUE) is related to a claim for an earlier effective date, and both issues are, therefore, before the Board. See Crippen v. Brown, 9 Vet. App. 413, 420 (1996) (appellant reasonably raised claim for CUE with the requisite specificity because he argued for an earlier effective date asserting that evidence compelling a grant of service connection was of record at the time of the prior final rating decisions), citing Dinsay v. Brown, 9 Vet. App. 79, 87-88 (1996) (claim for an earlier effective date was claim of CUE in final RO decision disallowing claim); Flash v. Brown, 8 Vet. App. 332, 340 (1995) (to be awarded earlier effective date, veteran must show CUE in RO decision disallowing higher rating). The August 2002 and August 2004 supplemental statements of the case (SSOCs) denied an effective date earlier than April 13, 1998, for the grant of service connection for bilateral hearing loss, to include a finding that the September 1989 rating decision that initially denied the claim was not clearly and unmistakably erroneous. Accordingly, the issue on appeal has been rephrased as shown above. In September 2004, the veteran had a personal hearing at the Waco RO before the undersigned Acting Veterans Law Judge. FINDINGS OF FACT 1. The veteran's informal original claim for service connection was received in June 1989. 2. A September 1989 rating decision denied service connection for hearing loss, and the veteran was notified of that decision and his appeal rights in September 1989. No correspondence was received from him within the appeal period. 3. The September 1989 rating decision failed to consider applicable law and evidence favorable to the veteran's claim. CONCLUSION OF LAW The September 1989 rating decision denying service connection for hearing loss was based on clear and unmistakable error, and service connection for hearing loss is granted as of June 26, 1989. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. §§ 3.105(a), 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, it is not required to discuss each and every piece of evidence in a case. The evidence submitted by the veteran or on his behalf is extensive and will not be discussed in detail. Rather, the Board will summarize the relevant evidence where appropriate. The veteran's informal original claim for service connection for hearing loss was received on June 26, 1989. A September 1989 rating decision denied service connection for this condition. The veteran was notified of that decision and his appeal rights in September 1989. No correspondence was received from him within the appeal period. On April 13, 1998, the RO received the veteran's request to reopen his claim for service connection for hearing loss. An August 1998 rating decision denied reopening of this claim After obtaining additional evidence, a March 1999 rating decision granted service connection for hearing loss, and a 20 percent rating was assigned effective April 13, 1998. The veteran contends that he is entitled to an earlier effective date. He argues that the denial of this claim in 1989 was erroneous because VA failed in its duty to assist him in developing the claim, VA did not consider the provisions of 38 U.S.C.A. § 1154(b), and VA failed to consider a 1989 statement signed by Dr. King. The 1989 rating decision is not subject to revision on the same factual basis except by a duly constituted appellate authority or except as provided in 38 C.F.R. § 3.105. In Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), the United States Court of Appeals for Veterans Claims (Court) set forth a three-pronged test to be used in determining whether clear and unmistakable error (CUE) is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that 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 of the prior determination; 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. The Court has further stated that: Clear and unmistakable error 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 result would have been manifestly different but for the error .... If a claimant-appellant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error ... that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a clear and unmistakable error claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on reconsideration, 6 Vet. App. 162, 163 (1994); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra), cert. denied, 528 U.S. 967, 145 L. Ed. 2d 315, 120 S. Ct. 405 (1999). Simply claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Fugo, 6 Vet. App. at 44; see also Russell, supra. Similarly, the Court has rejected as being too broad general and unspecified allegations of error based on the failure to follow regulations, failure to give due process, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of "error." See Fugo, 6 Vet. App. at 44. If a claimant wishes to reasonably raise a CUE claim, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant also must give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Id. There is a presumption of validity to otherwise final decisions, and the presumption is even stronger where the decision is being collaterally attacked as in a CUE claim. Id. As for the first argument, VA's breach of the duty to assist cannot form a basis for a claim of clear and unmistakable error. The veteran's representative has cited to the case of Hayre, which had held that an unappealed rating decision can be "non-final" where the RO's failure in the duty to assist constituted a grave procedural error. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). Hayre has, however, been overturned. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Although Hayre was valid when this effective date claim was filed, current case law, namely Cook, now applies to the veteran's appeal. See Brewer v. West, 11 Vet. App. 228, 231-33 (1998); Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Therefore, since there is no longer a basis in law for the arguments regarding failure of duty to assist in 1989, the Board will address these contentions no further. The second argument is that VA failed to consider and incorrectly applied applicable statutory provisions in effect at the time of the 1989 rating decision. Under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. The 1989 rating decision denied service connection for hearing loss based on lack of service medical records showing treatment, diagnosis, or complaints of hearing loss during service. The National Personnel Records Center (NPRC) had indicated no records were found for the veteran. Of record in 1989 were documents concerning the veteran's military service, which indicated he served in Luzon and Guadalcanal. It also noted his service with a field artillery battalion. Had the VA considered these facts when adjudicating the veteran's claim in 1989, in light of the fact that his service medical records were unavailable, his service with a combat artillery battalion was sufficient to establish that he was exposed to acoustic trauma during service. The veteran's third argument is that further error was made when VA failed to consider evidence favorable to his claim. Along with his 1989 claim, the veteran submitted private medical evidence showing diagnosis of hearing loss and a "Statement of Attending Physician" signed by Austin King, M.D., indicating that the veteran had had "[d]ecreasing hearing since being in service (some type of [history] of ear infections in Pacific service)." This evidence clearly showed a current diagnosis and a nexus statement. The 1989 decision failed to consider law and regulation which, if applied properly to the facts of this case, clearly and unmistakably demonstrated that service connection was warranted for the veteran's hearing loss disorder. The law in 1989 concerning the principles of entitlement to service connection was the same as it is now. Essentially, service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. A clear and unmistakable error is "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citation omitted). If VA had considered the provisions of section 1154(b), incurrence of acoustic trauma during the veteran's combat service would have been conceded (especially in light of the lack of service medical records), and if VA had further considered the private medical evidence, a then- current hearing loss disability and a relationship between that disability and service would have been acknowledged. In this case, had the RO applied the proper law and regulations and considered all evidence in evaluating the veteran's claim in 1989, there is no question that the evidence was sufficient to support a grant of service connection. All the elements needed to grant service connection were present in 1989, and the denial of the claim was clearly erroneous. Accordingly, since it has been shown that "reasonable minds could only conclude that the original decision was fatally flawed at the time it was made," Russell, 3 Vet. App. at 313, the Board finds that the September 1989 rating decision was clearly and unmistakably erroneous in denying service connection for the veteran's hearing loss. Service connection is granted for this condition as of June 26, 1989. ORDER As the September 1989 rating decision was clearly and unmistakably erroneous, service connection is hereby granted for the veteran's bilateral hearing loss as of June 26, 1989, subject to the governing regulations pertaining to the payment of monetary benefits. ____________________________________________ MILO HAWLEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs