Citation Nr: 1641750	
Decision Date: 10/28/16    Archive Date: 11/08/16

DOCKET NO.  06-03 812A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an effective date prior to July 16, 2003 for the award of service connection for tinnitus, to include as a result of an alleged clear and unmistakable error (CUE) in a September 1993 rating decision.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Nye, Associate Counsel
INTRODUCTION

The Veteran served on active duty from November 1990 to May 1992 with prior inactive duty service.

This matter comes to the Board of Veterans'Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In August 2005, the RO granted service connection for tinnitus and assigned a 10 percent disability rating effective July 16, 2003, the day VA received a document which was interpreted as a request by the Veteran to reopen a previously denied claim for service connection for tinnitus.  After the old claim was reopened and service connection was granted, the Veteran appealed the effective date assigned by the RO. 

In February 2009, the Board remanded this issue on the grounds that the written arguments of the Veteran's representative raised a claim of clear and unmistakable error (CUE) in a September 1993 rating decision which denied service connection for tinnitus.  Finding that the allegation of CUE was inextricably intertwined with the appeal of the assigned effective date, the Board remanded the claim.  In April 2009, the RO issued a new rating decision, finding no clear and unmistakable error which would make the Veteran eligible for an earlier effective date.  The Veteran appealed this decision as well.

On June 21, 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.


FINDINGS OF FACT

1.  An unappealed September 1993 rating decision denied a claim of entitlement to service connection for tinnitus.  

2.  The September 1993 rating decision, which denied service connection for tinnitus, was not the product of CUE as the law then in effect required a medical nexus between current tinnitus disability and active service.

3.  After the September 1993 denial of service connection for tinnitus, the first communication from the Veteran expressing his intent to reopen his service connection claim for tinnitus was received on July 16, 2003.


CONCLUSION OF LAW

The criteria for an effective date earlier than July 16, 2003 for the Veteran's award of disability compensation for tinnitus, to include CUE in a September 1993 rating decision, have not been met.  38 U.S.C.A. §§ 5109A, 5110, 7105 (West 2014); 38°C.F.R. §§ 3.105(a), 3.155, 3.400, 20.204(c) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide notice and assistance to claimants. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  When VA receives a complete or substantially complete application for benefits, VA must provide notice to the claimant and his or her representative concerning the evidence and information needed to substantiate the claim.  The notice required depends on the general type of claim the Veteran has made.  See e.g. Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  For example, after receiving an ordinary application for service-connection, VA must inform the Veteran of all of the essential elements of the claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

This appeal arises from the Veteran's disagreement with the effective date assigned after the RO granted service connection for tinnitus in August 2005.  Because his claim for service connection was granted, the claim is substantiated, additional notice is not required, and any prior defect in the notice is not prejudicial.  See Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003. VA's General Counsel has determined that while VA is required to issue a statement of the case when a "downstream element" - such as disagreement with the initial assigned effective date - arises after the initial adjudication of a claim, 38°U.S.C.A. § 5103(a) does not require the mailing of a separate notice concerning the information and evidence necessary to substantiate the newly raised issue.  Id.  The RO issued statements of the case explaining its ruling on the assigned effective date in February 2006, November 2006 and October 2010.

This decision will also address the Veteran's specific argument that an earlier effective date for service connection for tinnitus is appropriate based on CUE in a September 1993 VA rating decision.  The VCAA does not apply to claims of CUE in prior decisions, and VA's duties to notify and assist contained in the VCAA are not applicable to such motions.  See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); see also VAOPGCPREC 12-2001.

With respect to the issues being decided herein, VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims.  Service treatment records, post-service medical records, and lay statements have been associated with the claims file.  

For the reasons already mentioned, the duty to assist does not apply to the Veteran's request for an earlier effective date based on CUE.  CUE in the September 1993 rating decision has been the only specific argument in favor of an earlier effective date.  To the extent that he seeks an effective date for service connection for tinnitus earlier than July 16, 2003 on grounds other than CUE, the merits of his claim depend on the sequence in which VA received certain documents.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  Based on the Board's review of the record, there is no reason to suppose that outstanding records would establish the VA's receipt of claims for service connection for tinnitus or requests to reopen the Veteran's previously denied tinnitus claim earlier than July 16, 2003.  See 38 C.F.R. § 3.159(d) (VA may refrain from providing assistance when there is no reasonable possibility any assistance VA would provide would substantiate the claim).

Under these circumstances, VA has satisfied its duties to notify and assist.

Analysis

"Unless specifically provided otherwise in this chapter . . . the effective date of an award based on . . . a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a).  

The remaining subsections of 38 U.S.C.A. § 5110 establish exceptions to the general rule for claims filed within one year of certain specific events.  See Gaston v. Shinseki, 605 F.3d 979, 982-83 n. 2 (Fed. Cir. 2010).  For example, the effective date of disability compensation may be the day following the date of a veteran's discharge or release if the application is received within one year from the date of discharge or release.  This appeal, however, originates from a claim filed on July 16, 2003, which was construed as including a request from the Veteran to reopen a claim for service connection for tinnitus which was denied in September 1993.  

The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of the receipt of the new claim, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r).

Pertinent to the time period in question, the VA administrative claims process recognized formal and informal claims.  A formal claim was one that has been filed in the form prescribed by VA.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  An informal claim was any communication or action indicating an intent to apply for one or more benefits under VA law.  Thomas v. Principi, 16 Vet. App. 197 (2002).  See 38 C.F.R. §§ 3.1(p), 3.155(a).  An informal claim had to be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought.  Brannon v. West, 12 Vet. App. 32, 34-5 (1998). 

Although a claimant did not need to identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits had to be demonstrated.  See Brannon, 12 Vet. App. at 34-35.  See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant).  The United States Court of Appeals for the Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran's claim to its optimum.  Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).  This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," see Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).

Here, the September 1993 rating decision denied service connection for tinnitus on the basis that there was no complaint or diagnosis of tinnitus in service.  The Veteran was notified of this decision by letter dated September 23, 1993, but he did not file a notice of disagreement, or submit new and material evidence, within one year after receiving notice of the September 1993 decision.  Accordingly, the denial of service connection for tinnitus in 1993 became final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1993)

The Veteran next filed another application for service connection for tinnitus on July 16, 2003.  An August 2005 rating decision granted service connection for tinnitus effective to July 16, 2003.  

After a review of the entire evidentiary record in light of the applicable legal criteria, including the CUE criteria, the Board finds that an effective date earlier than July 16, 2003 for the award of service connection for tinnitus is not warranted.

Here, the record reflects that the RO finally denied a service connection claim for tinnitus in September 1993.  As the Veteran did not file an NOD or submit new and material evidence within one year of the date of notice of the denial, this claim is final based on the evidence then of record and is not subject to revision in the absence of CUE in the decision.  See 38 U.S.C.A. §§ 5109A, 7105; 38 C.F.R. §°3.156 (b); see also Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision).

The Board finds that, between the September 1993 denial and the July 16, 2003 application to reopen, there were no informal or formal applications to reopen the service connection claim for tinnitus.  The Board observes that any references to tinnitus in the VA clinic records between this time period could not support an application to reopen under 38 C.F.R. § 3.157 (b)(1) as VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established.  See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established).  See also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree).  Similarly, any private treatment records showing treatment for tinnitus, in and of themselves, is insufficient to establish an informal application to reopen.  See also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim).

Thus, in the absence of CUE, the effective date of the Veteran's award of disability compensation for tinnitus is governed by the portion of 38 U.S.C.A. § 5110(a) which provides that the effective date of "a claim reopened after final adjudication" is the date of the receipt of claim - in this case July 16, 2003.  However, under 38°C.F.R. § 3.105(a), VA must reverse or amend a prior decision "[w]here evidence establishes [clear and unmistakable error]."

According to the Veteran's representative, the Board should assign an effective date of June 29, 1993, the day VA received the claim which was resolved in the September 1993 rating decision.  If VA had not committed CUE in the September 1993 decision, the argument continues, that decision would have granted service connection for tinnitus and assigned June 29, 1993 as the effective date.  

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 result would have been manifestly different but for the error.  Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated.  Crippen v. Brown, 9 Vet. App. 412 (1996).  CUE must be made on the basis of the law and evidence at the time of the decision at issue.  Porter v. Brown, 5 Vet. App. 233 (1993).

A determination that a prior determination involved CUE involves the following three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992).

In September 1993, the record pertinent to the tinnitus issue (7 issues were decided in the decision) consisted of the Veteran's service treatment records (STRs) and a VA examination report dated July 1993.  None of the STRs mentioned tinnitus.  But the July 1993 VA examiner diagnosed a "severe case" of tinnitus.  According to the section of the examination report labelled "Narrative (Audiologic) History" the Veteran had a history of noise exposure in service.  The report indicates that the Veteran "worked in water purification and was exposed to generators on a daily basis.  During training exercises he was exposed to shells, rifles, and big guns."

One other section of the report refers to tinnitus: "[the Veteran] reported tinnitus which alternates between ears and is periodic.  It changes in loudness and he is unaware of the pitch.  He became aware of the tinnitus while performing on the firing range during Marine Corps service."  

In 1993, the law essentially required a claimant to meet three factors in substantiating a service connection claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disability.  See generally Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  Before the passage of the VCAA, unless all three factors were met, VA was not required to assist a claimant by providing an examination or obtaining medical opinion as the claim was considered not well-grounded.  Morton v. West, 12 Vet. App. 477 (July 14, 1999).  

The term "well grounded" referred to a separate, initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded."  Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  The truthfulness of evidence was presumed in determining whether a claim was well grounded.  See King v. Brown, 5 Vet. App. 19, 21 (1993).

Where the determinative issue involved a medical diagnosis, there had to be competent medical evidence to the effect that the claim was plausible; lay assertions of medical status did not constitute competent medical evidence.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

The Veteran's representative has correctly noted that, in September 1993, the law permitted the assignment of a 10 percent rating for tinnitus based on in-service exposure to acoustic trauma.  See 38 C.F.R. § 4.84b, Diagnostic Code 6260.  The July 1993 examination report, which was available to VA decisionmakers in September 1993, noted the existence of both severe tinnitus and acoustic trauma in service.  For these reasons, the Veteran contends that it was CUE to deny service connection for tinnitus in September 1993.

However, the law in effect in 1993 required a medical nexus between the Veteran's tinnitus disability and military service.  In Wade v. West, 11 Vet. App. 302 (1998), a combat veteran had alleged the onset of both hearing loss and tinnitus in service.  The Court accepted that the Veteran had satisfied the first two elements of a well-grounded claim, but upheld the Board's decision in finding that "the appellant is still required to submit medical evidence between his current conditions and his military service."  Thus, similar to Wade, this Veteran had established noise exposure and tinnitus, but there was no medical opinion linking tinnitus to noise exposure.

The Board also finds that the failure by VA to obtain a medical opinion did not constitute CUE.  In this respect, as in Wade, VA had no duty to obtain an opinion as the claim was not well-grounded under the legal standard in effect at that time.  Furthermore, an RO failure to obtain a "proper" examination cannot constitute the basis for a claim of CUE because "there is . . . no way of knowing what such an ... examination would have yielded ..., so it could not be concluded that it 'would have manifestly changed the outcome.'"  Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997) (citing Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc)).

The Board observes that, under the law currently in effect, a service connection claim for tinnitus may be awarded on the basis of lay testimony alone.  See 38 C.F.R. § 3.303(b); Fountain v. McDonald, 27 Vet. App. 258 (2015).  At the minimum, VA would have a duty to obtain medical opinion based on the report of recurrent symptoms since service.  See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006).  Charles v. Principi, 16 Vet. App. 370 (2002) (holding that a claimant was entitled to a medical nexus opinion when providing evidence of a current diagnosis of tinnitus and allegation that such tinnitus started in service.

Moreover, at the time of the September 1993 decision, the record included no statements from the Veteran about the history of his tinnitus other than the statements reported by the VA examiner in July 1993.  These statements are essentially that: 1) he was exposed to loud noises in service, e.g., the noise of weapons and generators; 2) he had "periodic" tinnitus alternating between the ears; and 3) he first noticed tinnitus in service.  The examiner's description of the Veteran's tinnitus as "periodic" also suggested uncertainty about whether the symptoms the Veteran experienced in service were related to the same condition diagnosed in July 1993.  

The Board is sympathetic to the Veteran's argument that the September 1993 rating decision contained errors.  But the errors complained of in his CUE motion amount to a simple "disagreement as to how the facts were weighed or evaluated" under the law then in effect.  Crippen, 9 Vet. App. at 418 (quoting Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc)).  Thus, the Board finds that the September 1993 rating decision was not the product of CUE as the law then in effect required a medical nexus between current tinnitus disability and active service.  For these reasons, the Board must deny the Veteran's request for an earlier effective date for tinnitus.


ORDER

Entitlement to an effective date prior to July 16, 2003 for service connection for tinnitus, to include as a result of an alleged CUE in a prior September 1993 rating decision, is denied.




____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs