Citation Nr: 1107294 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 05-25 473A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether a clear and unmistakable error (CUE) exists in a September 1966 rating decision denying service connection for left ear defective hearing. 2. Entitlement to an effective date earlier than January 9, 2004, for the grant of service connection for left ear defective hearing. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The Veteran had active service from October 1962 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2006, the Veteran testified as to the CUE claim at a central office hearing before the undersigned acting Veterans Law Judge. He also provided testimony to a Decision Review Officer as to his claim. Transcripts of the hearings have been associated with the claims file. The Board notes that the CUE issue was previously acknowledged by the Board in August 2006 and November 2007 remands. FINDINGS OF FACT 1. In a September 1966 decision, the RO denied the Veteran's claim for service connection for left ear defective hearing; the Veteran did not appeal this decision. 2. The September 1966 rating decision denying service connection for defective left ear hearing was consistent with and reasonably supported by the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. 3. The Veteran seems to have attempted to reopen his claim in correspondence in 1972 and 1973, it was denied by the RO in December 1972 and March 1973. 4. There is no evidence received by VA before January 9, 2004 showing the Veteran's intent to reopen service connection for defective left ear hearing. 5. On January 9, 2004, the Veteran's claim to reopen service connection for left ear defective hearing was received; service connection was granted, and an effective date of January 9, 2004 was assigned. CONCLUSIONS OF LAW 1. The September 1966 RO rating decision denying service connection for a left ear defective hearing was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.105 (2010). 2. The criteria for an effective date earlier than January 9, 2004 for the grant of service connection for left ear defective hearing have not been met. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria The law provides that when an RO renders an adverse decision, a claimant has the right to disagree with that decision by filing a notice of disagreement within one year from the date of mailing of notice of the decision. Absent such appeal, the adverse decision becomes final. See 38 U.S.C.A. § 7105(b)(1) (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2010); see also 38 U.S.C. § 4005(c) (West 2002); 38 C.F.R. §§ 3.104, 19.118, 19.153 (2010). Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. A claim of CUE is a form of collateral attack on an otherwise final rating decision by a VA regional office. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed.Cir.2000). For CUE to exist: (1) either the correct facts, as they were known at that time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the outcome would have been manifestly different if the error had not been made; and (3) the error was 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)). In other words, the error must be of a type that is outcome- determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE consists of "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. at 313. "It must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Hence, a disagreement with how VA evaluated the facts of a case is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Moreover, a failure on the part of the RO to fulfill its statutory duty to assist a Veteran with the development of facts pertinent to a claim does not constitute CUE. See Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Any communication from or action by a Veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. 38 C.F.R. § 3.155 (2010). Analysis Whether a clear and unmistakable error exists in a September 1966 rating decision denying service connection for left ear defective hearing In the present case, as a threshold matter, the Board finds that the arguments advanced by the Veteran allege clear and unmistakable error with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of the CUE claim. The Veteran contends that a September 1966 RO rating decision denying service connection for left ear defective hearing was clearly and unmistakably erroneous. The evidence considered by the RO in the September 1966 rating decision consists of the Veteran's service treatment records and a July 1966 VA examination report. The rating decision noted, and a review of the record confirms, that the Veteran's induction examination showed that the Veteran had preexisting left ear hearing loss. Service treatment records from January and February 1963 indicate that the Veteran felt his hearing loss had progressed to complete deafness, but the actual audiogram pure tone thresholds were less than what the Veteran displayed upon induction into service. The Veteran's hearing was evaluated at separation; the separation examination indicated that left ear hearing was normal. A July 1966 VA examination report showed that the Veteran had elevated pure tone thresholds and the pertinent diagnosis from the VA examination was impaired hearing in the left ear, practically total deafness, nerve deafness, etiology undetermined. In September 1966, the RO denied the claim of entitlement to service connection for left ear hearing loss. The RO determined that the left ear hearing loss pre-existed active duty and that there was no showing of any aggravation above and beyond the natural progress of the disability. The Veteran was informed of this decision in September 1966. He did not submit a timely appeal with the denial of service connection for left ear hearing loss, which became final. The Veteran maintains that the September 1966 rating decision constitutes CUE for four main reasons. First, the Veteran, through his representative in an April 2006 statement and during his April 2006 hearing, asserts that CUE exists because the RO failed to address the issue of presumptive entitlement for neurosensory deafness under 38 C.F.R. § 3.309, based on chronic diseases under 38 C.F.R. § 3.307. The Veteran argues that the 1966 VA audiological examination found a compensable level of hearing loss due to an organic disease of the nervous system less than 12 months after his discharge from service. The Board observes that when the RO issued the September 1966 rating decision, VA regulations prohibited establishing service connection for aggravation of a preexisting chronic disease that first becomes manifest to a degree of 10 percent or more following discharge from military service. See 38 C.F.R. § 3.307(a) (1966). This prohibition was eventually held inconsistent with the statute (38 U.S.C.A. § 1112(a)) as interpreted by the Federal Circuit Court in Splane v. West, 216 F. 3d 1058 (2000). VA amended 38 CFR 3.307(a), (c), (d), and 3.309(a), effective November 7, 2002, to conform to the plain language of the statute and the conclusions in Splane. See 67 Fed. Reg. 67,792-93 (Nov. 7, 2002). However, these holdings and changes were made long after the RO issued its rating decision in 1966. Therefore, there is no indication the regulatory provision was incorrectly applied based on the law that existed at the time of the September 1966 rating decision. Accordingly, CUE is not shown on this basis. Second, the Veteran's representative in April 2006 argues the September 1966 rating decision contained CUE because of the RO's failure to apply the provisions of 38 C.F.R. § 3.306 (b). The Veteran argues that clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. However, the Board notes that the RO in 1966 evaluated the Veteran's service treatment records and found that the 1963 treatment records showed that the Veteran displayed slightly better hearing than when he was inducted. The RO did not comment on the Veteran's separation examination (which was available to it in 1966), which showed the Veteran with normal hearing. In any event, the presumption of soundness did not attach to this Veteran, as his defective left hearing was noted on his induction examination. 38 C.F.R. § 3.305. The Veteran's argument is then simply an allegation that the RO in September 1966 improperly weighed and evaluated the evidence, which may not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. Accordingly, CUE is not shown on this basis. Third, the Veteran himself essentially argues throughout the appeal period that CUE exists because his service treatment records show a diagnosis of hearing loss and a VA examination report from July 1966 shows practically total deafness of the left ear. In addition, the Veteran alleges that his hearing was same in 1963 as it was in 1966 and that the service treatment records showing puretone thresholds in January and February 1963 are as unreliable as the falsified numbers place on his separation examination; the Veteran claims he was never given a hearing test for his separation examination. Although the Board notes that the Veteran's separation examination is indeed inconsistent with the rest of the evidence of record, the RO in September 1966 never actually referred to the separation examination (which shows normal hearing), but rather focused on treatment records from 1963. The Veteran's argument is tantamount to his disagreement with the manner in which the facts of record were weighed or evaluated, specifically, that there was evidence of record at the time that should have established a service-connected disability. He has therefore not alleged clear and unmistakable error within the meaning of applicable law. Crippen v. Brown, 9 Vet. App. 412, 417-418 (1996); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). This is simply an allegation that the RO in September 1966 improperly weighed and evaluated the evidence, which may not support a finding of CUE. Fugo, 6 Vet. App. at 43- 44. Accordingly, CUE is not shown on this basis. Fourth, the Veteran argues that the Board's November 2007 decision and remand by the undersigned was not effectuated correctly. He believes that VA's assumption in 1966 that his hearing loss was not service-connected was a clear and unmistakable error. However, for CUE to exist: (1) either the correct facts, as they were known at that time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the outcome would have been manifestly different if the error had not been made; and (3) the error was 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)). The November 2007 Board decision and remand the Veteran references reopened the claim and granted service connection substantially based on evidence, including positive medical nexus evidence, not in existence or submitted to VA until nearly 40 years after the September 1966 rating decision. Therefore, there is no indication that the correct facts, as they were known at that time, were not before the adjudicator or that the error was based on the record that existed at the time of the September 1966 rating decision. Accordingly, CUE is not shown on this basis. In conclusion, although the Board understands the Veteran's frustration that the claim for left ear hearing loss was ultimately granted, it cannot be said that the correct facts, as known at the time, were not before VA adjudicators in September 1966, and the statutory and regulatory provisions extant at the time were incorrectly applied. There were no errors made which were undebatable and of the sort which, had they not been made would have manifestly changed the outcome of the RO's decision. For these reasons, the Board finds that there was not CUE in the September 1966 rating decision denying service connection for left ear defective hearing. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.105. Entitlement to an effective date earlier than January 9, 2004 for service connection for left ear defective hearing In September 1966, the RO denied the claim of entitlement to service connection for left ear defective hearing. The Veteran was informed of this decision in September 1966. He did not submit a timely appeal with the denial of service connection for left ear hearing loss, which became final. The Veteran has maintained that he submitted a notice of disagreement with the September 1966 decision within days after he received it. Although the Veteran submitted a letter to the RO in October 1966, he never specifically indicated an intent to appeal. Rather he asked that the RO review his medical records and that if they did, they would then find the error was on their part. In response, the RO sent a letter in October 1966 again reiterating that the examinations in the Veteran's service treatment records did not show his left ear hearing loss to be worse than when he was examined for induction. The letter also makes clear that if the Veteran believed the September 1966 decision was not correct, he could file an appeal at any time before September 20, 1967. No such appeal was ever filed. In a December 1972 letter, the Veteran appeared to attempt to reopen his claim. The RO responded with its own letter referencing its October 1966 letter to the Veteran. The letter stated that since his appeal period has expired, he could only reopen his claim upon submission of new and material evidence not previously submitted showing the hearing loss was incurred or aggravated by service. The letter indicated the RO was sorry it was unable to give a more favorable reply. The RO sent another such letter in March 1973, again denying the request to reopen. There was no subsequent correspondence from the Veteran evincing an attempt to reopen the claim, although the Veteran attempted to obtain various service records in a January 1974 request. The next correspondence in the claims file from the Veteran is from 30 years later; on January 9, 2004, the Veteran's claim to reopen service connection for left ear defective hearing was received. Regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.302 (2010). Absent appeal, a decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. The effective date of an award of service connection shall be the day following the date of discharge or release if the application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date of an award of compensation based on a reopened claim shall be based on the facts found, but shall not be earlier than the date of VA receipt of the reopened claim with new and material evidence. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2). In view of the above evidence and statutory and regulatory criteria, the Board concludes that the effective date assigned for the grant of service connection for the left ear defective hearing disability by the RO is correct. The preponderance of the evidence is against the claim for an earlier effective date for service connection for the left ear defective hearing disability, and the claim is denied. Given the above, as the Veteran did not file a reopened claim for service connection for left ear defective hearing prior to January 9, 2004, he has already been given the earliest possible effective date for the award of service connection for left ear defective hearing. To the extent that the Veteran argues CUE in the September 1966 rating decision, that issue has already been addressed above in this decision. Thus, there is no basis for an effective date earlier than January 9, 2004 for the award of service connection for compensation purposes. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). The Veteran's earlier effective date claim stems from an award of service connection. VAOPGCPREC 8-2003 interpreted that, if, in response to notice of its decision on a claim for which VA has already given the section 5103(a) notice, VA receives a notice of disagreement that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, by a January 2007 letter, before the grant of service connection, the Veteran was provided notice of the evidence and information necessary for establishing effective dates. Subsequent re-adjudication has been accomplished since that time. The Board also concludes that VA has met its duty to assist the Veteran in developing the evidence to support his claim. The record contains his service treatment records and VA medical records. The Veteran was given VA medical examinations in connection with the claim. Private treatment records are also associated with the claims file. Statements from the Veteran and his representatives are associated with the claims file. The Veteran testified before the undersigned. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his attorney has indicated that there are any available additional pertinent records to support his claim. The Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As to the Veteran's claim that there was CUE in a September 1966 RO rating decision, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002), does not apply to CUE actions. See Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding that VCAA does not apply to RO CUE claims); Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions). Thus, no further discussion of the notification or development of the CUE claim is necessary. ORDER A September 1966 rating decision, which denied service connection for left ear defective hearing, was not clearly and unmistakably erroneous, and the claim to have the rating decision reversed is denied. An effective date earlier than January 9, 2004 for the grant of service connection for left ear defective hearing is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs