Citation Nr: 1300902 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 05-16 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Whether there was clear and unmistakable error in a December 17, 1993 rating decision denying entitlement to service connection for defective hearing. 2. Entitlement to an effective date earlier than January 14, 2004 for the award of service connection for a bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from October 1954 to July 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal of June 2004 and July 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This case was previously before the Board in December 2007, October 2008, and January 2012, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board's decision addressing a Motion for Reconsideration of the Board's December 18, 2007 decision denying entitlement to an earlier effective date for the award of service connection for tinnitus is the subject of October 19, 2011 correspondence currently contained in the Veteran's claims folder. In January 2012, the Board found no clear and unmistakable error in a November 10, 1958 rating decision denying entitlement to service connection for defective hearing. In May 2012, the Board denied a Motion for Reconsideration of the aforementioned January 2012 decision. The January 2012 Board decision found no clear and unmistakable error in a November 10, 1958 rating decision denying entitlement to service connection for defective hearing. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. The rating decision of December 17, 1993, which denied entitlement to service connection for defective hearing, was adequately supported by and consistent with the law and evidence then of record. 2. The Veteran's "reopened" claim of entitlement to service connection for a bilateral hearing loss was received no earlier than January 14, 2004. CONCLUSIONS OF LAW 1. The rating decision of December 17, 1993, which denied entitlement to service connection for defective hearing, was not clearly and unmistakably erroneous, and is now final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2012). 2. Entitlement to an effective date prior to January 14, 2004 for an award of entitlement to service connection for a bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to claims involving clear and unmistakable error. Livesay v. Principi, 15 Vet. App. 165 (2001). As to the issue of entitlement to an effective date earlier than January 14, 2004 for an award of service connection for bilateral hearing loss, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to whether the Veteran was provided appropriate application forms, or the completeness of his application. VA notified the Veteran in February and April 2008, as well as in March 2009, and January and May 2012, of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is no current error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all pertinent evidence of record to include all service treatment records and examination reports on file at the time of December 17, 1993 rating decision which denied entitlement to service connection for defective hearing; as well as all evidence pertaining to the appellant's entitlement to an earlier effective date for the award of service connection for bilateral hearing loss. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Clear and Unmistakable Error The Veteran in this case alleges clear and unmistakable error in a December 17, 1993 rating decision denying entitlement to service connection for defective hearing. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As noted above, the Veteran argues that the rating decision of December 17, 1993, which denied entitlement to service connection for defective hearing, was clearly and unmistakably erroneous. In that regard, under 38 C.F.R. §§ 3.104(a) and 3.105(a) taken together, a rating action is final and binding in the absence of clear and unmistakable error. A decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). Under 38 C.F.R. § 3.105(a), "[P]revious determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error." The United States Court of Appeals for Veterans Claims (Court) has provided the following guidance with regard to a claim of clear and unmistakable error: In order for there to be a valid claim of clear and unmistakable error, there must have been an error in the prior adjudication of the claim. 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; the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 10 Vet. App. 310, 313-14 (1992). The Court in Russell further stated: Errors that would not have changed the outcome are harmless. By definition, such errors do not give rise to the need for revising the previous decision. The words 'clear and unmistakable error' are self-defining. They are 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. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the AOJ [agency of original jurisdiction] or Board decision. Id. at 313-14. In determining whether there is clear and unmistakable error, the doctrine of reasonable doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b) is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Id. The Court has consistently stressed the rigorous nature of the concept of clear and unmistakable error. "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). "Clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). "It must 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). In Russell, Fugo, and other decisions, the Court has emphasized that merely to aver that there was clear and unmistakable error in a rating decision is not sufficient to raise the issue. The Court has further held that simply to claim clear and unmistakable error on the basis that previous adjudications have improperly weighed the evidence can never rise to the stringent definition of clear and unmistakable error. In the present case, at the time of the December 17, 1993 rating decision, there was of record a statement from the Veteran dated on November 29, 1993 to the effect that he would like to "reopen" his claim of entitlement to service connection for a loss of right ear hearing. The Veteran additionally stated that he had established a claim prior to that time, and that he had seen an audiologist on that date at the VA Medical Center located in Philadelphia, Pennsylvania. In May 2012, there were received VA outpatient treatment records dated in January and November 1993, showing treatment for an alleged hearing loss. Those records were constructively on file at the time of the aforementioned December 17, 1993 rating decision, and must be considered in the context of the Veteran's claim. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In reviewing the evidence an January 4, 1993, entry noted that the Veteran complained of hearing loss, in addition to right ear pain. Reportedly, approximately two months earlier, the Veteran "could not hear at all" in his right ear. According to the Veteran, he had experienced right ear hearing loss "for years," as well as "constantly fluctuating" hearing. At the time of evaluation, the Veteran gave a history of noise exposure, however, he denied any problems with tinnitus, dizziness, or balance. A physical examination of the Veteran's ears showed the left tympanic membrane to be clear and intact. The right tympanic membrane was intact, though with slightly decreased mobility. The clinical assessment was right ear hearing loss. On November 29, 1993, the Veteran complained of progressively decreasing hearing in his right ear for the prior three to four weeks. Additionally noted were problems in the past with both of the Veteran's ears. According to the Veteran, while in service, he had worked around loud noise without hearing protection. A physical examination of the Veteran's ears was unremarkable. The pertinent diagnosis noted was chronic progressive bilateral hearing loss. The Veteran argues that the evidence of record at the time of the December 17, 1993 rating decision clearly showed that his hearing loss had its origin during, or was in some way the result of, noise exposure in service. As noted above, however, in an adjunct decision of the Board dated in January 2012, which found no clear and unmistakable error in a November 10, 1958 rating decision denying entitlement to service connection for defective hearing, it was determined that the evidence of record showed neither a hearing loss in service, nor a compensable hearing loss within the first year following discharge from active duty. The fact that the Veteran may have been experiencing some problems with his hearing in 1993, 35 years following his discharge from service, does not establish an objective relationship between that hearing loss and an incident or incidents of his period of active military service. In fact, the Veteran's statements show only a disagreement with how the facts at the time were weighed or evaluated, an argument which does not rise to the level of clear and unmistakable error. Under the circumstances, the December 17, 1993 rating decision which denied entitlement to service connection for defective hearing was adequately supported by and consistent with the evidence then of record. It was not clearly and unmistakably erroneous. According, the appeal is denied. Earlier Effective Date In addition to the above, the Veteran seeks an effective date earlier than January 14, 2004 for an award of service connection for bilateral hearing loss. In that regard, when a claim is denied in a rating decision, and the claimant fails to timely appeal that decision by filing a notice of disagreement within the one-year period prescribed in 38 U.S.C.A. § 7105(b)(1), that decision becomes final, and the claim may not thereafter be reopened or allowed, except upon the submission of new and material evidence or a showing that the prior final decision contained clear and unmistakable error. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.105. The effective date of an award of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is the date of receipt of claim, or the date entitlement arose, whichever is later. The effective date of an evaluation and award of compensation is generally the day following separation from service, or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. As held above, the December 17, 1993 rating decision denying entitlement to service connection for defective hearing was not clearly and unmistakably erroneous. While the Veteran did file a Notice of Disagreement with that December 1993 rating decision, he subsequently failed to perfect his appeal. Accordingly, the December 17, 1993 rating decision which denied entitlement to service connection for defective hearing is now final. 38 U.S.C.A. § 7105. On January 14, 2004, there was received the Veteran's "reopened" claim for service connection for bilateral hearing loss. In response to that claim, the Veteran was scheduled for a VA audiometric examination, which examination was conducted on April 27, 2004. Following that examination and a review of the Veteran's claims folder, the examiner offered his opinion that it was unlikely that the Veteran's current hearing loss was the result of noise exposure in service, inasmuch as he had "normal hearing upon discharge." However, in an addendum to the aforementioned audiometric examination dated in June 2004, that same examiner amended his opinion to state that noise exposure in service was "as likely as not" the cause of the Veteran's hearing loss. Based on the aforementioned, VA in a June 2004 rating decision granted entitlement to service connection for bilateral defective hearing, effective from January 14, 2004, the date of receipt of the Veteran's "reopened" claim for that benefit. As noted above, the effective date of an award of compensation based on a claim reopened after final disallowance is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In the case at hand, it is clear that the Veteran's "entitlement" to the award of service connection for bilateral hearing loss "arose" no earlier than June 2004, the date of the addendum to the VA audiometric examination which provided a nexus between the Veteran's hearing loss and his active military service. The fact that the RO chose to assign an effective date of January 14, 2004, apparently based on the date of receipt of the Veteran's "reopened claim" for service connection, does nothing to alter the fact that, the evidence demonstrates that the Veteran is not entitled to an effective date any earlier than that date for the award of service connection for bilateral hearing loss. Accordingly, the claim must be denied. In reaching this determination, the Board has given due consideration to the Veteran's testimony given at the time of RO hearings in September 2006 and March 2011. Such testimony, however, is not probative when taken in conjunction with the evidence for consideration in the determination before the Board. Moreover, the Veteran's arguments presented during the course of those hearings have been adequately addressed in the context of this decision. The Board does not doubt the sincerity of the Veteran's statements. Those statements, however, do not provide a persuasive basis for finding that the December 1993 rating decision was clearly and unmistakably erroneous, or that the Veteran is entitled to an effective date earlier than January 14, 2004 for the award of service connection for bilateral hearing loss. The claim is denied. ORDER The December 17, 1993 rating decision which denied entitlement to service connection for defective hearing was not clearly and unmistakably erroneous; the appeal is denied. Entitlement to an effective date earlier than January 14, 2004 for the award of service connection for bilateral hearing loss is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs