Citation Nr: 0601251 Decision Date: 01/17/06 Archive Date: 01/31/06 DOCKET NO. 99-03 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether a rating decision in April 1986, which denied entitlement to service connection for bilateral hearing loss, involved clear and unmistakable error. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty in the United States Navy from January 1981 to January 1985. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in September 2003 by the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA). On August 4, 2005, the veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. The Board notes that a rating decision by the RO in February 2005 denied the veteran's claim of entitlement to service connection for tinnitus and found that new and material evidence had not been received to reopen the claim of entitlement to service connection for bilateral hearing loss which had been the subject of a prior final disallowance by the rating decision in April 1986 which the veteran is claiming involved clear and unmistakable error. After the hearing on August 4, 2005, the veteran filed a notice of disagreement with the February 2005 rating action by the RO in his case. The record reflects that his notice of disagreement, which was received at the RO on August 10, 2005, and date-stamped as filed on that date, was timely filed with the VA office from which the veteran received notice of the February 2005 determination which he is appealing. See 38 C.F.R. §§ 20.300, 20.302(a) (2005). The issue of entitlement to service connection for tinnitus and the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for hearing loss in the right ear are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. Because this decision by the Board reverses the RO's April 1986 denial of entitlement to service connection for left ear hearing loss, the Board finds that it is not necessary to order further action by the RO on that issue. FINDINGS OF FACT 1. In denying entitlement to service connection for hearing loss in the left ear, a rating decision in April 1986 incorrectly applied a regulatory provision in effect at that time to the facts of the veteran's case; the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome of the adjudication of the claim. 2. The denial of entitlement to service connection for hearing loss in the right ear by the rating decision in April 1986 was a reasonable exercise of adjudicatory judgment and did not involve any clear error. CONCLUSIONS OF LAW 1. A rating decision in April 1986 involved clear and unmistakable error by denying entitlement to service connection for hearing loss in the left ear. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2005). 2. A rating decision in April 1986 did not involve clear and unmistakable error by denying entitlement to service connection for hearing loss in the right ear. 38 U.S.C.A. §§ 5107, 5109A (West 2002); 38 C.F.R. § 3.105(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and its implementing regulations, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003), are applicable to this appeal. The VCAA and the implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the VCAA does not apply to the issue of whether there was CUE in the April 1986 rating decision by the RO which denied entitlement to service connection for bilateral hearing loss. See Parker v. Principi, 15 Vet. App. 407 (2002) (VCAA does to apply to a claim that an RO decision involved CUE). In addition, the Board's decision herein on the issue of whether there was CUE in the RO's April 1986 decision denying entitlement to service connection for hearing loss in the left ear constitutes a complete grant of the benefit sought on appeal on that issue. Therefore, the Board finds that no further action is required to comply with the VCAA and the implementing regulations with regard to the claims decided herein. I. Legal Criteria A. CUE. Clear and unmistakable error (CUE) is a special type of error; it is an error which the claimant alleges was made in a prior rating decision which the claimant did not appeal within the one-year time limit for filing an appeal to the Board. 38 U.S.C.A. §§ 5109A, 7105(b)(1), (c); 38 C.F.R. § 3.105(a). Previous determinations which were final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (2005). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were later evaluated), or the statutory or regulatory provisions extant 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 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. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). B. Service Connection. For disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury suffered or disease contracted in line of duty in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred or pre-existing injury or disease was aggravated, compensation as provided by law, but no compensation shall be paid if the disability is a result of the person's own willful misconduct. 38 U.S.C. § 1131 (1986). Organic diseases of the nervous system shall be granted service connection although not otherwise established as incurred in service if manifested to a compensable degree within the applicable time limits under 38 C.F.R. § 3.307 following peacetime service after January 1, 1947, provided the rebuttable presumptions of 38 C.F.R. § 3.307 are also satisfied. 38 C.F.R. § 3.309(a) (1986). A chronic disease listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service when the disease became manifest to a degree of 10 percent or more within one year in a veteran who served 90 days or more after December 31, 1946. The factual basis may be established by medical evidence, competent lay evidence, or both. Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Lay evidence should describe the material and relevant facts as to the veteran's disability observed within such period. The chronicity and continuity factors outlined in 38 C.F.R. § 3.303(b) will be considered. 38 C.F.R. § 3.307(a)(b) (1986). With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1986). C. Auditory Acuity - Normal Limits of Hearing Under VA Standards in 1986. In consideration of service connection, hearing is within normal limits under ISO (ANSI) values when the speech reception threshold is less than 26 decibels and the discrimination score is higher than 92 percent, and when the pure tone thresholds in the 250-500-1000-2000-4000 Hertz range are all less than 40 decibels with at least four of the frequencies 25 decibels or less. M21-1, VA Adjudication Procedure Manual, Chapter 50, Rating Specific Disabilities, § 50.11 (Rating of Hearing Impairment), Change 415 (January 3, 1986). D. Current Law Concerning Substantive Nature Of VA Internal Manual Provisions The Board is bound in its decisions by applicable statutes, VA regulations, instructions of the Secretary, and the precedent opinions of the General Counsel of the Department of Veterans Affairs. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 19.5 (2005). VA may not ignore its own regulations. Young v. Brown, 4 Vet. App. 106, 109 (1993). However, the Board is not bound by Department manuals, circulars, or similar administrative issues. 38 C.F.R. § 19.5. Whether provisions of VA internal manuals constitute "regulations" for the purposes of 38 U.S.C.A. § 7104(c) is a question which has been addressed by court decisions and by a precedent opinion by VA's General Counsel. In VAOPGCPREC 6-00 (May 19, 2000), VA's General Counsel noted that federal appeals courts have held that substantive rules may confer enforceable rights while internal guidelines and interpretive statements of a federal agency cannot and that, in Hamilton v. Derwinski, 2 Vet. App. 671, 675 (1992), the Court held that substantive rules in the VA Adjudication Procedure Manual M21-1 are the equivalent of Department regulations. Provisions of VBA (Veterans Benefits Administration) Manual M21-1 have been found by the Court to be substantive when they have established an evidentiary threshold for a particular type of claim, see Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997), when they have necessarily limited administrative action by establishing a prerequisite for establishment of service connection, see Earle v. Brown, 6 Vet. App. 558, 562 (1994), or governed which rating criteria will be applied to a particular claim, see Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990). In summarizing the developing case law on the question of whether various provisions of VBA Manual M21-1 constitute "regulations" for the purposes of 38 U.S.C.A. § 7104(c) and are thus binding on the Board in its appellate decisions, VA's General Counsel stated in May 2000 that "a provision in a VA manual constitutes a substantive rule when the provision effects a change in law, affects individual rights or obligations, or narrowly limits administrative action. Substantive provisions in manuals may be considered the equivalent of regulations and confer enforceable rights on claimants. However, manual provisions may not be given binding effect to the extent that they have a direct adverse effect on claimants. Provisions which establish evidentiary thresholds for particular claims or govern determination of rating criteria will be considered substantive. Manual provisions that merely interpret a statute or regulation or provide general guidance as to the procedures to be used in the adjudication process do not create enforceable rights." VAOPGCPREC 6-00 at paragraph 8. II. Factual Background The veteran's service medical records contain a report of medical history for enlistment dated in January 1981. On that form, with regard to a question as to whether he ever had hearing loss or had hearing loss at that time, the veteran's reply was in the negative. At his January 1981 examination for enlistment, the veteran underwent audiometric testing which showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 20 15 LEFT 15 15 10 10 35 Speech recognition ability was not reported. At the January 1981 enlistment examination, the veteran's ears were evaluated as normal, and the summary of defects and diagnoses made no reference to his hearing ability or to any hearing impairment. The Board notes that the limited testing of the veteran's auditory acuity at the examination for enlistment in January 1981 did not show that his hearing was not within normal limits at that time under the VA standards regarding the normal limits of hearing which were in effect in April 1986, as set forth in the Legal Criteria section of this decision. The veteran's service medical records show that he underwent three (3) audiometric (air conduction) evaluations during the year 1981: in May 1981; in July 1981; and in October 1981. (The service medical records do not contain any information as to why these three hearing tests were performed.) At the audiometric examination in service in May 1981, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 15 LEFT 15 10 10 10 25 At the audiometric examination in service in July 1981, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 15 LEFT 5 10 10 10 40 At the audiometric examination in service in October 1981, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 15 LEFT 15 15 15 20 25 Speech recognition ability was not reported at any of the in- service audiometric examinations in 1981. The Board notes that the three in-service audiometric examinations in 1981 did not show that his hearing during that year was not within normal limits under the VA standards regarding the normal limits of hearing which were in effect in April 1986. The balance of the veteran's service medical records, prior to an examination for service separation in November 1984, are silent as to any reference to his ability to hear. In a report of medical history for separation in November, the veteran replied in the negative to the question as to whether he ever had hearing loss or had hearing loss at that time. At the examination for separation in November 1984, the veteran underwent an audiometric examination which showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 15 20 LEFT 25 15 20 25 45 Speech recognition ability was not reported. The pure tone thresholds at 6000 Hertz were reported as 40 decibels in the right ear and "75/70" decibels in the left ear. With reference to the veteran's auditory acuity, the examining physician reported a diagnosis of "HFHL AU: NCD", that is high-frequency hearing loss, both ears, not considered disabling. On VA Form 21-526, Veteran's Application For Compensation Or Pension, received in December 1985, in response to a question concerning the nature of sickness, disease, or injuries for which the claim was made and the date each began, the veteran stated, "Hearing Loss - Both Ears - 1982." In support of his claim for service connection for hearing loss, the veteran submitted a report of an audiological examination by a private audiologist which he underwent in August 1985, which was approximately eight months after his separation from active naval service. The "Results" of the August 1985 private audiological examination were reported for both the right ear and for the left ear as "mild high frequency hearing loss." At a VA medical examination for disability evaluation in February 1986, with regard to present complaints, the veteran stated that he had a problem "hearing very high sounds" and that, while he was on active duty in the Navy, he had been exposed to "a lot of very noisey areas" and first noticed a problem with his hearing on a cruise in "about 1982." At a VA audiological examination in February 1986, pure tone thresholds, in decibels by air conduction, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 20 LEFT 0 0 5 0 25 The pure tone thresholds at 6000 Hertz were 40 decibels in the right ear and 60 decibels in the left ear. Speech audiometry revealed speech discrimination ability of 96 percent in the right ear and 92 percent in the left ear. The speech reception thresholds were reported as two (2) decibels in the right ear and zero decibels in the left ear. In February 1986, a VA audiology trainee, a VA audiologist, and the chief of the audiology and speech pathology service at a VA Medical Center all signed a report which stated that the VA audiological examination of the veteran had resulted in an impression of mild to moderately severe bilateral sensorineural hearing loss beginning at 6000 Hertz. The basis of the RO's April 1986 denial of entitlement to service connection for bilateral hearing loss was that "VA audiometric evaluation shows hearing within normal limits at all applicable frequencies..." III. Analysis In considering whether the RO's April 1986 rating decision, which denied the veteran's claims of entitlement to service connection for hearing loss in the right ear and in the left ear, involved CUE, the Board first notes that the rating decision in question did not refer to the VA Adjudication Manual M21-1 provision in effect at that time which defined hearing within normal limits for the purpose of service connection. The Board finds that the 1986 internal VA manual provision which defined normal auditory acuity necessarily excluded from a grant of service connection auditory acuity which was currently "within normal limits" and, also, provided that auditory acuity which was not currently within normal limits was a physical condition for which service connection might be granted. Although current law on the substantive nature of VA internal manual provisions was obviously not in effect in April 1996 when the RO issued the rating decision which the veteran alleges involved CUE, see Damrel, supra, the Board is of the view that M21-1, VA Adjudication Procedure Manual, Chapter 50, Rating Specific Disabilities, § 50.11 (Rating of Hearing Impairment), Change 415 (January 3, 1986), was applicable to claims for service connection for hearing loss pending for adjudication at VA ROs in April 1986 and that, by its very terms, the Manual M21-1 provision must be considered to have been a substantive rule which both established an evidentiary threshold for entitlement to service connection for hearing loss and at the same time defined hearing loss disability under VA standards at the time of the April 1986 rating decision in the veteran's case. With regard to hearing loss in the veteran's left ear, the evidence of record at the time of the April 1986 rating decision included medical evidence in his service medical records which showed his hearing in the left ear at entrance upon active duty in January 1981 to have been within normal limits under the VA standards of normal hearing in effect in April 1986 (under the provisions of Manual M21-1 defining hearing within normal limits for the purpose of service connection in 1986) and a diagnosis at service separation of high-frequency hearing loss in that ear. The evidence of record in April 1986 also included: a diagnosis in August 1985 by a private audiologist of mild bilateral high- frequency hearing loss; a diagnosis in February 1986 by a VA audiologist who tested the veteran's auditory acuity and whose diagnostic conclusion was approved by the VA chief of audiology of mild to moderately severe sensorineural hearing loss in the left ear beginning at 6000 Hertz; and the VA Form 10-2364, Audiological Evaluation, which reveals, inter alia, that a finding was made in February 1986 by the examining audiologist that the veteran had speech discrimination of 92 percent in the left ear. In April 1986, M21-1, VA Adjudication Procedure Manual, Chapter 50, Rating Specific Disabilities, § 50.11 (Rating of Hearing Impairment), Change 415 (January 3, 1986), which the Board has found was a substantive rule binding on the RO in its decisions on claims for service connection for hearing loss, provided that hearing was not within normal limits for the purpose of service connection unless the discrimination score for the ear in question was higher than 92 percent. In the veteran's case, the VA Form 10-264 from the February 1986 VA audiological examination which was of record in April 1986 contained an entry that the veteran's left ear speech discrimination was 92 percent, not higher than 92 percent. Therefore, the Board finds that reasonable minds cannot differ that competent medical evidence of record in April 1986 demonstrated that the veteran's hearing in the left ear was not within normal limits for the purpose of service connection and that at that time he had hearing loss disability in the left ear under VA standards. The competent medical evidence of record in April 1986 thus showed that the veteran had been diagnosed with hearing loss in the left ear while on active duty at the time of his examination for service separation in November 1984 and that he had current hearing loss disability in the left ear in April 1986. In addition, the veteran's statement on his original VA compensation claim, received in December 1985, that he was claiming service connection for hearing loss in the left ear which began in 1982 while he was on active duty in the Navy and the history of problems with his hearing which he stated to the VA medical examiner in February 1986 must, the Board finds, reasonably be understood as an evidentiary assertion that he had experienced hearing impairment in the left ear since a naval cruise in 1982. At the time of the rating decision in April 1986, there was no medical evidence or lay evidence of record contrary to the medical evidence and lay evidence summarized above which showed hearing loss in the left ear during the veteran's active service and a current hearing loss disability in the left ear in April 1986. Nor was there any lay or medical evidence contrary to the veteran's contention that he had had the hearing loss disability which was found on VA testing in February 1986 since 1982 during his active naval service. Furthermore, there was no evidence of record whatsoever of any post-service or intercurrent cause to account for the veteran's hearing loss disability under VA standards in April 1986. With these facts, the Board is constrained to conclude that, in denying entitlement to service connection for hearing loss in the left ear, the RO's April 1986 rating decision incorrectly applied a regulatory provision extant at that time (specifically, the substantive rule of the Manual M21-1 provision then in effect concerning the VA standards of hearing loss disability for the purpose of service connection) and that this error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome of the adjudication of the veteran's claim for service connection for hearing loss in the left ear at the time that this error was made by the RO. The evidence of record in April 1986 entitled the veteran to a grant of service connection for hearing loss in the left ear under the provisions of 38 C.F.R. § 3.303(b) (1986) pertaining to chronicity and continuity, but the RO denied entitlement to that benefit by a rating action which involved CUE. The Board concludes that, to the extent that the April 1986 rating decision denied the veteran's claim of entitlement to service connection for hearing loss in the left ear, that rating action involved CUE and must be reversed. See 38 U.S.C.A. § 5109A (West2 2002); 38 C.F.R. § 3.105(a) (2005). With regard to hearing loss in the veteran's right ear, however, the Board finds that the rating decision in April 1986 did not involve CUE. The reported findings of the VA audiological examination in February 1986 on the VA Form 10- 2364, Audiological Evaluation, which was completed by the examining VA audiologist, did not show hearing loss disability in the right ear under VA standards then in effect for the purpose of service connection. Specifically, the reported findings of the February 1986 VA audiological examination with regard to the veteran's right ear showed a speech reception threshold less than 26 decibels, a speech discrimination score higher than 92 percent, and pure tone thresholds in the 250-500-1000-2000-4000 Hertz range all less than 40 decibels with at least four of the frequencies 25 decibels or less, thus demonstrating that the veteran's auditory acuity in the right ear was within normal limits for the purpose of service connection at that time of the April 1986 rating decision. Such being the case, it was not error, much less CUE, for the RO to deny entitlement to service connection for hearing loss in the right ear on the basis that the VA examination had shown normal hearing in the right ear. Therefore, the Board concludes that the preponderance of the evidence is against the veteran's claim that there was CUE in the denial of service connection for hearing loss in his right ear by the April 1986 rating decision. See 38 U.S.C.A. § 5109A (West2 2002); 38 C.F.R. § 3.105(a) (2005). As the preponderance of the evidence is against the veteran's claim that the April 1986 rating decision involved CUE by denying his claim of entitlement to service connection for hearing loss in the right ear, the benefit of the doubt doctrine does not apply on that issue. 38 U.S.C.A. § 5107(b) (West 2002). ORDER A rating decision in April 1986, which denied entitlement to service connection for hearing loss in the left ear, involved clear and unmistakable error and is hereby reversed on that issue. A rating decision in April 1986, which denied entitlement to service connection for hearing loss in the right ear, not having involved clear and unmistakable error, the appeal on that issue is denied. REMAND Appropriate VA action, including issuance of a statement of the case, is necessary with regard to the issue of entitlement to service connection for tinnitus and the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss in the right ear. See 38 C.F.R. § 19.26 (2005). The Court has held the proper course of action in such circumstances is to remand the matter. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the issue of entitlement to service connection for tinnitus and the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss in the right ear are hereby REMANDED to the AMC for the following: The AMC should take appropriate action, including issuance of a statement of the case, on the appeal initiated by the veteran from the rating decision which addressed entitlement to service connection for tinnitus and whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss in the right ear. The veteran and his representative should be clearly advised of the need to file a timely substantive appeal if the veteran wishes to complete an appeal from that determination. The purpose of this remand is to comply with the holding of the Court in Manlincon. The appellant has the right to submit additional evidence and argument on the matters which 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs