Citation Nr: 1325669 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-11 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether the severance of service connection for a hearing loss disability was proper. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Robert C. Brown, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1959 to July 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2009, the Veteran testified before a Decision Review Officer at the RO; in November 2011, he testified before the undersigned at a hearing at the RO. Transcript of the hearings have been associated with the record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if additional action is required on his part. FINDINGS OF FACT 1. In a May 2007 rating decision, the RO granted service connection for a hearing loss disability. 2. In a November 2009 rating decision, the RO severed service connection for a hearing loss disability. 3. The evidence of record does not establish that the May 2007 award of service connection for a hearing loss disability was clearly and unmistakably erroneous. CONCLUSION OF LAW The severance of the award of service connection for a hearing loss disability was improper, and the criteria for restoration of service connection for a hearing loss disability have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim for restoration of service connection for a hearing loss disability has been granted, as discussed below. As such, the Board finds that any error related to the Veterans Claims Assistance Act of 2000 is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Kent v. Nicholson, 20 Vet. App. 1 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Severance of Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active service. See 38 U.S.C.A. § 1110 (West 2002). In order to establish service connection for a disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Once service connection has been granted, VA may sever this benefit only if it shows that the rating decision granting this benefit was clearly and unmistakably erroneous, and only after certain procedural safeguards have been met. See Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Severance of service connection based on any standard less than that set forth in 38 C.F.R. § 3.105(d) is erroneous as a matter of law. See Stallworth, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Clear and unmistakable error (CUE) is a very specific and rare kind of error; it is the kind of error of fact or 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. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) 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; (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Damrel, supra; Russell, supra. To warrant revision of a decision on the ground of CUE in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome. The current evidence of record must establish that a grant of service connection would be clearly and unmistakably erroneous. See Stallworth, supra. Turning to the facts in the instant case, the Veteran received a VA examination in May 2007, at which time the examiner found that the bone conduction component of the Veteran's hearing loss was at least as likely as not related to the Veteran's in-service experience as an armorer and supply clerk. The RO granted service connection for hearing loss in a May 2007 rating decision. In this decision, the RO found that the Veteran demonstrated a bilateral hearing loss disability at his May 2007 VA examination. The RO noted that the Veteran was an armorer and a supply clerk in service with a howitzer helicopter battalion. The RO further found that the May 2007 VA examiner noted that it was at least as likely than not that the Veteran's current hearing loss disability was related to the Veteran's experiences in service. Thus, having demonstrated the three Hickson elements, the Veteran was awarded service connection for a hearing loss disability. In August 2007, the Veteran provided records from a private physician indicating that in 1993, the Veteran had a definite bilateral hearing impairment with evidence of clinical otosclerosis (that is, an abnormal growth of bone near the middle ear). The Veteran received an additional VA examination in July 2008, at which time the examiner opined that the Veteran's hearing loss was as likely as not related to his in-service experiences. The examiner noted that the Veteran's exposure to excessive noise from weapons fire and helicopters could have caused his current hearing loss disability. In January 2009, L.I., an audiologist, opined that "at least some" of the Veteran's sensorineural hearing loss was the result of his exposure to hazardous noise while in service. The Veteran received a VA examination in March 2009, at which time the examiner noted that the Veteran's history was notable for otosclerosis, which is not known to be caused by noise exposure. The examiner also noted that the Veteran reported a 30-year history of working with power tools without the use of hearing protection. Thus, the examiner concluded that the Veteran's hearing loss was less likely as not caused by the Veteran's military service. In July 2009, the RO proposed to sever service connection for a hearing loss disability. Specifically, the RO stated that the Veteran's hearing loss was caused by nonservice-connected otosclerosis rather than in-service noise exposure. Later in July 2009, the RO notified the Veteran of the proposed action, informed him of his right to submit evidence and appear for a personal hearing, and allowed him a period of 60 days to respond, as required under 38 C.F.R. § 3.105(d). In a September 2009 Independent Medical Examination, a private physician opined that the Veteran's hearing loss was as likely as not a consequence of the Veteran's military service. Also in September 2009, Dr. C.N. noted that the Veteran stated that his hearing loss began in service. After reviewing the Veteran's service history, Dr. C.N. opined that the Veteran's hearing loss was the result of his exposure to hazardous noise in service. In a November 2009 rating decision, the RO formally severed service connection for hearing loss effective February 1, 2010. In August 2010, Dr. M.W. noted the Veteran's diagnosis with otosclerosis. Dr. M.W. concluded that because of the progressive nature of otosclerosis, it was likely that a significant portion of the Veteran's hearing loss disability was related to noise exposure as well. In April 2011, Dr. J.H. noted that the Veteran had otosclerosis in both ears. Dr. J.H. indicated that such otosclerosis was the primary cause of the Veteran's residual hearing impairment. Dr. J.H. noted that another cause of the Veteran's hearing impairment was the natural loss of nerve ending function through chronic exposure to noise, including in-service gunfire. Dr. J.H. indicated that the Veteran had a bilateral sensorineural hearing loss combined with otosclerosis. The amount of hearing loss attributable to the Veteran's otosclerosis compared to the hearing loss attributable to noise exposure could not be determined. As discussed above, in order to properly sever service connection, the evidence must establish that the grant of service connection was clearly and unmistakably erroneous. See 38 C.F.R. § 3.105(d) (2012). The evidence in this case does not support such a finding. In other words, the evidence is at least debatable as to whether the Veteran's bilateral hearing loss is related to his military service. As shown above, the medical evidence is divided as to whether the Veteran's hearing loss is attributable to his nonservice-connected otosclerosis, to his in-service noise exposure, or to some combination of these factors. As such, the Board finds that the May 2007 rating decision granting service connection for hearing loss did not constitute CUE. Accordingly, severance of service connection for hearing loss on the basis of CUE was improper. See 38 C.F.R. §§ 3.105(d), 3.303 (2012). Thus, the claim to restore service connection for hearing loss is granted. ORDER Severance of service connection for a hearing loss disability was improper, and the restoration of service connection for a hearing loss disability is granted. REMAND The Veteran's claim of entitlement to a TDIU must be remanded for additional evidentiary development. In September 2009, the Veteran indicated that he last worked full-time in November 2005 as a tile setter. In September 2009, Dr. J.E. opined that the Veteran's hearing impairment was so severe as to render the Veteran unemployable. As a rationale for this opinion, Dr. J.E. noted that the Veteran was no longer able to work as a tile contractor, and he could not communicate with prospective customers. The Veteran has not been afforded with an examination to determine the effects of the Veteran's service-connected disabilities on his employability. Such an examination should be performed on remand. Accordingly, the case is REMANDED for the following actions: 1. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder. 2. Schedule the Veteran for an examination with an examiner of appropriate expertise to evaluate the effects of his service-connected disabilities on his ability to secure and follow substantially gainful employment. The examiner should offer an opinion regarding the Veteran's ability to secure and follow gainful employment consistent with his education and occupational experience. The opinion should be offered without consideration of age and any nonservice-connected disabilities. Specifically, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities of hearing loss and tinnitus are so severe as to preclude him from securing and following substantially gainful employment. If the Veteran is capable of work, the examiner should state the type of work that the Veteran can perform and what accommodations would be required due to the service-connected disabilities for the Veteran to maintain that employment. The examiner should not base the opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. The examiner must review the claims file and must note that review in the report. The complete rationale for all opinions expressed should be provided, to include reference to pertinent evidence where appropriate. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs