Citation Nr: 1328373 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 06-37 235A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether an April 20, 1983, decision of the Board of Veterans' Appeals (Board), which denied a claim of entitlement to service connection for bilateral hearing loss, should be revised or reversed due to clear and unmistakable error (CUE). REPRESENTATION Substitute Moving Party represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Substitute Moving Party is the surviving spouse of the Moving Party, a Veteran who had active duty in the United States Army from June 1942 to November 1945 and who died on February [redacted], 2011. The motion at issue arose from a written statement received at the Board in December 2006 asserting CUE in an April 1983 Board decision which denied entitlement to service connection for bilateral hearing loss. The Board denied the motion in a February 2008 decision. The Moving Party appealed the Board's denial to the Court of Appeals for Veteran's Claims (Court), which affirmed the Board's February 2008 decision in November 2010. The Moving Party appealed the Court's November 2010 decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), which reversed and remanded the Court's decision. The Court then issued a December 2012 memorandum decision vacating and remanding the Board's February 2008 decision in response to the Federal Circuit. While the case was pending at the Federal Circuit Court, the Veteran died, and in June 2011, the Federal Circuit granted the Veteran's spouse's motion to substitute for her husband on appeal. FINDINGS OF FACT 1. In a decision dated April 20, 1983, the Board denied entitlement to service connection for bilateral hearing loss on the basis that the earliest clinical record of hearing impairment in November 1962 was too remote from the Veteran's active service. 2. The correct facts, as they were known at the time, were before the Board on April 20, 1983; however, on that date, the Board incorrectly applied the statutory and regulatory provisions in existence at that time (i.e., the combat presumptions under 38 U.S.C.A. § 1154(b)) such that the outcome of the claim would be manifestly different. 3. The Veteran is presumed to have sustained acoustic trauma and hearing loss during active service, and the evidence in 1983, demonstrated continued bilateral hearing loss thereafter that was related to service. CONCLUSION OF LAW The April 20, 1983, decision, in which the Board denied service connection for bilateral hearing loss, was clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404, 20.1409 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been held to be inapplicable to CUE claims. Sorakubo v. Principi, 16 Vet. App. 120, 122 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the duties specified in the VCAA are not applicable to allegations of CUE in a prior Board decision). Board CUE Motion The Substitute Moving Party claims that an April 20, 1983, Board decision that denied service connection for bilateral hearing loss contained CUE. Specifically, that the 1983 Board did not correctly apply the combat presumptions in existence at the time of the decision; and, that if those presumptions had been properly applied, the outcome of the Board's 1983 decision would have been manifestly different. A final decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes such error, the prior Board decision shall be reversed or revised. See 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400 (2012). The motion to review a prior final Board decision on the basis of clear and unmistakable error must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to re-filing. See 38 C.F.R. § 20.1404(b) (2012); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). Clear and unmistakable error 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. See 38 C.F.R. § 20.1403(a) (2012); see also Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 310 (1992). The review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal that, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. See 38 C.F.R. § 20.1403(b) and (c) (2012); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Only the law as it existed at the time of the Board's decision may be considered. See 38 C.F.R. § 20.1403(b). See Damrel and Russell, supra. The following is a synopsis of the law and regulations pertaining to service connection in effect in April 1983. In general, service connection may be granted for disabilities incurred in or aggravated by military service. See 38 C.F.R. § 3.303(a) (1983). For certain chronic disorders, including sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 C.F.R. § 3.307 (1983). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. See 38 U.S.C. § 354 (1982) 38 C.F.R. § 3.304(d) (1983). The moving party served in combat in Italy during World War II. In September 1981, the moving party filed an initial claim of entitlement to service connection for hearing loss. His contentions at that time were that he suffered acoustic trauma as a result of combat service. In a December 1981 rating decision, the RO denied the claim. The RO acknowledged the moving party's service medical records were destroyed in a 1973 fire at the National Personnel Records Center in 1973. The evidence of record at the time of the December 1981 RO rating decision consisted of a statement from Dr. R.L.D dated in October 1981, which indicated he conducted an audiogram in November 1962 which evidenced bilateral hearing loss. Dr. R.L.D. also stated the moving party's hearing loss was "due to noise exposure or Atrobine or Quinine for malaria." The RO considered Dr. R.L.D.'s opinion, but found that the 1962 diagnosis of hearing loss was "too remote from military service to be considered service-connected." The moving party was notified of the December 1981 rating decision via a January 1982 letter. He submitted "buddy" statements which in essence attested to the moving party's exposure to loud noises in combat in Italy. The RO continued the denial of the claim in a February 1982 rating action. In March 1982, the Veteran submitted a statement in which he asserted that he experienced a hearing loss during his service and that his hearing, especially in the right ear, had been deteriorating ever since. The moving party subsequently perfected an appeal to the Board. In May 1982, the moving party and substitute moving party testified before the Board. The moving party testified that he experienced ringing in his ears and maybe short periods of temporary deafness when firing mortar rounds during service. He further testified that he first noticed hearing loss in 1946 when he could not hear a watch tick. The substitute moving party testified that the moving party had hearing difficulty when they were married in 1948. In the April 1983 decision which is being challenged by the CUE motion, the Board determined that although the evidence established that the moving party had incurred acoustic trauma and had received treatment for malaria in service, the evidence did not establish a medical relationship between events in service and the currently diagnosed hearing loss. The Board found that the findings of Dr. R.L.D. were "too remote from the veteran's active service to support the theory of a relationship between acoustic trauma or treatment for malaria in service and the hearing loss then noted [in 1962]." See the April 20, 1983, Board decision, page 4. The Board did not cite or address the combat presumptions of 38 U.S.C. § 354 (currently 38 U.S.C. § 1154(b)). In a June 2012 decision, the Federal Circuit clarified that a combat Veteran can invoke § 1154(b) presumptions to show the cause of a disability and to show the disability itself was incurred in service. It is also necessary to afford the Veteran the benefit of every reasonable doubt, including on the question of whether the current disability was incurred in service. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Accordingly, in this case, under § 1154(b), the Veteran would be presumed to have been exposed to acoustic trauma in-service, and that he had decreased hearing acuity in service. He, therefore, would only have to show that the hearing loss was a chronic condition that persisted in the years following his active duty to establish service connection. Furthermore, in evaluating the evidence on this question, he would have the benefit of every reasonable doubt resolved in his favor. As indicated above, the evidence at the time of the Board's 1983 decision included lay testimony from the Veteran and his spouse of a chronic hearing loss persisting post service, and a positive private medical opinion linking the Veteran's hearing loss to noise exposure. There was no explicit evidence to the contrary. Thus, based on the application of all the presumptions afforded by § 1154(b) and its requirement to resolve reasonable doubt in the Veteran's favor, the evidence in 1983 showed in-service acoustic trauma and in-service hearing loss, together with chronic hearing loss persisting thereafter. Given that, as well as the positive medical nexus opinion between hearing loss and service, the failure to allow service connection was error. As such, the motion for a revision of the Board's April 1983 decision must be granted. ORDER The motion for reversal or revision of the April 1983 Board decision denying service connection for bilateral hearing loss on the grounds of CUE is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs