Citation Nr: 1234447 Decision Date: 10/03/12 Archive Date: 10/11/12 DOCKET NO. 09-07 115A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than June 17, 2005, for the grant of service connection for left ear hearing loss, to include whether there is clear and unmistakable error (CUE) in a March 1969 rating decision. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active service from October 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2007, the Veteran appeared and testified at a videoconference hearing held before the undersigned Veterans Law Judge. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). In August 2011, the Board remanded the Veteran's claim for the RO to adjudicate in the first instance his allegation that there was CUE in the March 1969 rating decision that initially denied his claim for service connection for hearing loss. [The Board had determined that the CUE claim was inextricably intertwined with the claim for an earlier effective date for the grant of service connection for left ear hearing loss.] In the remand, the Board asked that the Veteran's CUE claim not be returned to the Board unless the Veteran perfected a timely appeal. The RO issued a rating decision in January 2012 denying the Veteran's claim of CUE in the March 1969 rating decision. It simultaneously issued a Supplemental Statement of the Case that denied an earlier effective date based on the CUE allegation. After reconsideration, the Board finds that the RO appropriately adjudicated the Veteran's CUE claim as an aspect of his claim for an earlier effective date in the January 2012 Supplemental Statement of the Case. Specifically, the Board finds that the allegation of CUE in the March 1969 decision is essentially the Veteran's only argument for being entitled to an earlier effective date for the grant of service connection for left ear hearing loss. Because the RO treated the matter as adequately appealed by discussing it in the January 2012 Supplemental Statement of the Case, the Board finds that any objection it might have had to adjudicating the CUE claim at the present time has been waived. Percy v. Shinseki, 23 Vet. App. 37, 47 (2009). The Veteran's CUE allegation is merely an aspect of his claim for an earlier effective date, and it must adjudicate all theories of entitlement raised by the record. Robinson v. Peake, 21 Vet. App. 545, 552-553 (2008). Thus, the issue on appeal has been recharacterized as stated on the title page of this decision and will be adjudicated by the Board at this time. Having found in the decision below that there is CUE in that portion of the March 1969 rating decision that denied service connection for hearing loss, the Board remands the issue of entitlement to an earlier effective date for service connection for left ear hearing loss, which is addressed in the REMAND portion of the decision below, to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran filed an original claim for hearing loss in September 1968. 2. In a March 1969 rating decision, the RO denied service connection for hearing loss, and the Veteran was notified of that decision and his appeal rights. No correspondence was received from him within the appeal period. 3. The March 1969 rating decision failed to properly apply the applicable law and regulation to the evidence, which would have yielded a manifestly different result. CONCLUSION OF LAW The March 1969 rating decision denying service connection for hearing loss was based on clear and unmistakable error. 38 U.S.C.A. § 1153, 1705 (West 2002); 38 C.F.R. § 3.306 (1968); 38 C.F.R. §§ 3.104(a), 3.105 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION CUE claims are based upon the record before VA at the time the decision is made. Accordingly, there is no duty to notify or assist the Veteran in obtaining additional evidence to support his claim. Further, the Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), is not applicable to claims of CUE, because CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). In the present case, the Veteran seeks an earlier effective date for the award of service connection for left ear hearing loss. He has alleged that the RO committed CUE in the March 1969 rating decision that denied his initial claim for service connection for hearing loss in that the RO failed to consider all evidence of record, specifically two audiometric test reports conducted in June 1968 and December 1968. He claims that these two audiometric test reports show that the Veteran's hearing loss had worsened during service and, if they had been considered, the RO would have had no choice but to grant service connection for his hearing loss. The Veteran's original claim for service connection for hearing loss was received in September 1968. A March 1969 rating decision denied service connection for hearing loss. The Veteran was notified of that decision and his appeal rights in March 1969. No correspondence was received from him within the appeal period. This decision is, therefore, final. 38 U.S.C.A. § 7105(b). In January 1981, the Veteran filed again for service connection for hearing loss. In a letter later that month, the RO advised the Veteran that service connection for hearing loss was denied in 1969 and that, to reopen his claim, he must submit new and material evidence that establishes a hearing loss was incurred in or aggravated by his military service, and still exists. As the Veteran did not respond to that letter, this claim is deemed to have been abandoned. 38 C.F.R. § 3.158. In June 2005, the Veteran filed another claim for service connection for hearing loss. In December 2005, the RO denied reopening this previously denied claim on the basis that no new and material evidence had been received. The Veteran appealed that denial. Thereafter, in a January 2007 decision, the RO granted service connection for hearing loss in the right ear based upon a VA examiner's medical opinion effective June 17, 2005 (the date of the Veteran's claim to reopen), but continued the denial of service connection for hearing loss in the left ear. The Veteran continued his appeal to the Board. In a January 2008 decision, the Board reopened the Veteran's claim and granted service connection for left ear hearing loss on the basis that the evidence was sufficient to raise a reasonable doubt whether the Veteran's pre-existing hearing loss in the left ear was aggravated during service beyond its natural progression. By rating decision issued in February 2008, the RO effectuated the Board's January 2008 decision granting service connection for the left ear hearing loss and assigning a 40 percent disability rating for bilateral hearing loss effective June 17, 2005, the date the claim to reopen was received. In November 2008, the Veteran submitted a Notice of Disagreement as to the assignment of June 17, 2005 as the effective date for the grant of service connection for his left ear hearing loss, claiming that he initially filed his claim in 1968 and VA acknowledged that it made a CUE when it denied his claim at that time. He also claimed that VA acknowledged that he had a hearing loss that should have been rated at least 10 percent in 1968. The RO issued a Statement of the Case in January 2009 and the Veteran submitted a timely VA Form 9 perfecting his appeal. In his VA Form 9, the Veteran again alleged CUE in the March 1969 rating decision that initially denied service connection for hearing loss claiming that the RO failed to consider pertinent medical information that was in the Veteran's medical record at the time of the original denial in March 1969. The Veteran and his representative also argued this allegation of CUE at the December 2007 Board hearing. A final RO decision generally may not be reversed or amended in the absence of CUE. 38 U.S.C.A. §§ 5108, 5109A, 7105(c) (West 2002); 38 C.F.R. § 3.105(a) (2011); Simmons v. Principi, 17 Vet. App. 104, 110-11 (2003). VA regulatory § 3.105(a) provides: Where evidence establishes [CUE], the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of [CUE] has the same effect as if the corrected decision had been made on the date of the reversed decision. In the Simmons decision, the United States Court of Appeals for Veterans Claims (Court) set forth the laws relating to CUE claims as follows: A CUE claim is a collateral attack on a final RO decision. See Crippen v. Brown, 9 Vet. App. 412, 418 (1996); see also Fugo v. Brown, 6 Vet. App. 40, 44 (1993). In Russell v. Principi, the Court . . . defined CUE as follows: Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied....[CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome...[, an error that is] undebatable,...[such that] reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell, 3 Vet. App. 310, 313-14 (1992) (en banc); 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, 120 S.Ct. 405, 145 L.Ed.2d 315 (1999). A determination that there was CUE must be based on the record and the law that existed at the time of the prior decision. Russell, 3 Vet. App. at 314...[F]or there to be a valid claim of CUE, the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. Id. at 313[&]...Damrel v. Brown, 6 Vet. App. 242[, 246] (1994) [(appellant's argument that the RO misevaluated and misinterpreted the evidence available to it at the time is not the type of administrative error reversible under 38 C.F.R. § 3.105(a))]. Simmons, 17 Vet. App. at 110-11. "A party bringing a CUE challenge to a final RO decision bears the burden of proving that the decision was based on a clear and unmistakable error. This burden is not satisfied by the mere assertion that the decision contained CUE; instead the party must describe the alleged error 'with some degree of specificity' and must provide persuasive reasons 'as to why the result would have been manifestly different but for the alleged error.'" Andre v. Principi, 301 F.3d 1354, 1361 (2002); see also Crippen, 9 Vet. App. at 420; Fugo, 6 Vet. App. at 44 ("to raise CUE there must be some degree of specificity as to what the alleged error is and ... persuasive reasons must be given as to why the result would have been manifestly different"). CUE assertions that fail to satisfy these pleading requirements must be dismissed without prejudice to refiling rather than be denied by the Board. Simmons, 17 Vet. App. at 114 (2003) citing DAV v. Gober, 234 F.3d 682, 699 (2000). The Court has also held that "[e]ach wholly distinct and different CUE theory underlying a request for revision is a separate matter and, when attacking a prior RO decision, each must be presented to and adjudicated by the RO in the first instance and, if not, the Board lacks jurisdiction over the merits of the matter." Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006); see also Andre, 301 F.3d at 1361 ("Because a CUE claim involves an allegation of an error with some degree of specificity, a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim."). In the March 1969 rating decision, in denying the Veteran's claim for service connection for hearing loss, the RO stated the following reason for its denial: "On entrance examination the Veteran showed a high frequency loss of hearing, and there is clearly and unmistakably no evidence to show that the Veteran's loss of hearing was aggravated beyond normal progression during his period of active duty." At the time the March 1969 rating decision was issued, the applicable regulation relating to aggravation of a pre-existing disability stated the following: (a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. (38 U.S.C. 353) (b) War service. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. (1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. (38 U.S.C. 354) (c) Peacetime service. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service. 38 C.F.R. § 3.306 (1968). After consideration of the Veteran's CUE allegations, the Board initially finds that his allegations as set forth in his Notice of Disagreement are not prevailing because there is nothing in the record to demonstrate that either the RO or the Board ever acknowledged CUE was committed in the March 1969 rating decision or that the Veteran's hearing loss was manifested to a degree of 10 percent in 1968. The Veteran has not pointed to any document in the record to support such allegations. The Board acknowledges that its January 2008 decision granted service connection for left ear hearing loss but finds that was based upon a liberal reading of the evidence and resolved reasonable doubt in the Veteran's favor. Such does not rise to the level of an acknowledgment of CUE in the March 1969 rating decision. As for the CUE allegation raised by the Veteran in his VA Form 9 and at the December 2007 Board hearing, the Board notes that the RO's March 1969 decision did not specify what evidence it considered at the time it rendered its decision. In Natali v. Principi, the Court of Appeals for the Federal Circuit (Federal Circuit Court) held that statements of the RO decision's reasons and bases were not required prior to "the Veterans' Benefits Amendments of 1989, Pub. L. No. 101-237, 103 Stat. 2062 (1988), which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for the decision." Natali, 375 F.3d 1375, 1380 (Fed. Cir. 2004). Consequently, the RO's failure in the March 1969 rating decision to discuss the evidence in the record, especially that favorable to the Veteran's claim, cannot be the basis for finding CUE in that rating decision. Furthermore, the RO is presumed to have considered the evidence of record even though it did not specifically discuss it. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (2007), citing Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) ("[ A]bsent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination ... must be presumed to have been reviewed by [ VA], and no further proof of such review is needed."). Consequently, the Board finds that the Veteran cannot prevail on this allegation of CUE. Hence, the Board must presume that the RO considered all evidence of record including the June 1968 and December 1968 audiometric test reports. Nevertheless, after considering the reason set forth in the March 1969 rating decision, the Board finds that the RO committed CUE in that it failed to properly apply the applicable law and regulation to the issue. The RO clearly found that the Veteran's hearing loss pre-existed his entry into service. Although not explicitly stated, it can be inferred that the RO found that the Veteran's pre-existing hearing loss was aggravated in service. Thus, the presumption of aggravation applied. The RO erred, however, in applying the clear and unmistakable evidence standard to rebut the presumption of soundness. The reason set forth by the RO clearly demonstrates that it required clear and unmistakable evidence to show aggravation beyond the natural progression of the condition, but the standard set forth in the applicable regulation is that there must be clear and unmistakable evidence that the aggravation was NOT beyond the natural progression of the condition. By requiring clear and unmistakable evidence to show aggravation beyond the natural progression, the RO impermissibly placed the burden of proof on the Veteran when the burden to rebut the presumption is actually on VA. Finally, had the RO properly applied the clear and unmistakable evidence standard in rebutting the presumption of aggravation, it would have had no choice but to grant service connection for hearing loss because there was no evidence to demonstrate that the Veteran's hearing loss was not aggravated beyond its natural progression. Accordingly, the Board finds that the RO committed CUE in the March 1969 rating decision when it denied service connection for hearing loss. Given the procedural history of this case, however, the Board will defer a decision on an earlier effective date to the RO for adjudication in accordance with this decision. ORDER The March 1969 rating decision that denied service connection for hearing loss was clearly and unmistakably erroneous and, to that extent only, the appeal is granted. REMAND Having found CUE in the March 1969 rating decision that initially denied service connection for hearing loss, the Board finds that remand is warranted for the RO to readjudicate the claim for an earlier effective date for left ear hearing loss in accordance with that decision. In this regard, the Board notes that the March 1969 decision simply denied service connection for hearing loss. As the Veteran's September 1968 claim, however, was for bilateral hearing loss and the evidence of record at that time established he had bilateral hearing loss, the Board presumes that the denial of hearing loss in March 1969 was for bilateral hearing loss. As previously discussed, service connection for right ear hearing loss was awarded in a January 2007 rating decision and an effective date of June 17, 2005 was assigned, which was the date that the Veteran filed his claim to reopen for service connection for hearing loss. The Board notes that the Veteran did not disagree with the effective date assigned within one year of that rating decision. Subsequently, service connection for hearing loss in the left ear was granted by the Board in a January 2008 decision, which was effectuated by the RO in a February 2008 rating decision. As the Veteran was now service-connected for bilateral hearing loss, a disability rating of 40 percent for bilateral hearing loss was assigned effective June 17, 2005, again the date the claim to reopen was received. Consequently, on remand, the RO must consider the effect that the finding of CUE in the March 1969 rating decision's denial of service connection for hearing loss has on the assignment of June 17, 2005 as the effective date for the award of service connection for the Veteran's left ear hearing loss. It should also consider the effect the Board's decision has on the January 2007 grant of service connection for the right ear hearing loss and the assignment of an effective date of June 17, 2005. Accordingly, this case is REMANDED for the following: Readjudicate the Veteran's claim for entitlement to an effective date earlier than June 17, 2005, for the grant of service connection for left ear hearing loss in light of the Board's decision finding CUE in the March 1969 rating decision that initially denied service connection for bilateral hearing loss. In doing so, the effect of the Board's decision finding CUE in the March 1969 rating decision on the January 2007 rating decision that granted service connection for right ear hearing loss and assigned an effective date of June 17, 2005 should be considered as well. Thereafter, if such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs