Citation Nr: 1335043 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-32 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether there was clear and unmistakable error in the May 21, 2007, rating decision that denied entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which found that there was no clear and unmistakable error (CUE) in the May 2007 denial of service connection for bilateral hearing loss. In December 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in July 2010. While the Veteran did request a Travel Board hearing on his July 2010 VA Form 9, in a subsequent communication received in September 2011, he withdrew his request for a Board hearing. Accordingly, the Veteran's hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2013). In a July 2013 brief, the Veteran's representative argued that the Veteran's CUE claim was also a petition to reopen the previously denied claim for service connection for bilateral hearing loss. Thus, the issue of whether new and material evidence has received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The May 21, 2007, rating decision was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied. CONCLUSION OF LAW Clear and unmistakable error is not shown in the May 21, 2007, rating decision. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While 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. 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, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. 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, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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). I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (Court) held in part that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions." See Livesay, 15 Vet. App. at 179. It was observed that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim of CUE is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging such error is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant," as defined by 38 U.S.C.A. § 5100 (West 2002), cannot encompass a person seeking a revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. Based on the precedential decision of the Court in Livesay, the Board concludes that the Veteran's CUE claims are not subject to the provisions of the VCAA. The Board notes that the Veteran and his representative have been accorded sufficient opportunity to present his contentions. There is no indication that they have further argument to present. II. Merits of the Claim The Veteran asserts that there was CUE in the May 2007 rating decision denying entitlement to service connection for bilateral hearing loss. Essentially, he and his representative have argued that (1) the audiogram performed at discharge was inaccurate, (2) the combat presumption under 38 U.S.C.A. § 1154(b) was not applied, and (3) the negative VA nexus opinion on which the denial was based was inadequate. Review of the record reflects that the Veteran did not appeal the May 2007 rating decision. Accordingly, it became final. 38 C.F.R. § 3.104 (2013). There are two exceptions to the rule of finality of VA decisions, i.e., challenges based on CUE in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). 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, e.g., 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 Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Damrel, supra; Russell, supra. CUE that requires revision of a prior final rating action exists only where it appears "undebatably" that "[e]ither 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." See Russell, 3 Vet. App. at 313. The Board has reviewed the claims file and notes the Veteran and his representative's contentions. However, as noted above, in order for CUE to granted, an error must have occurred which is undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. The Board does not find that such an error occurred. The Veteran and his representative's arguments of an inaccurate separation audiogram and an inadequate VA opinion fail to rise to the level of CUE as they are not undebatable errors that would have manifestly changed the outcome at the time of the rating decision, for several reasons. First, although the audiometric findings in 1966 were not converted from (American Standards Associates (ASA) units to International Standards Organization (ISO) units, such conversion would not have rendered puretone thresholds high enough to be considered hearing loss under the provisions of 38 C.F.R. § 3.385, or even the generally recognized thresholds of hearing impairment under Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). And while the puretone threshold for 3000 Hertz was not recorded in 1966, such omission does not change the finding that there was no evidence of hearing impairment at the time. So there is not a question as to the accuracy of the separation audiogram and the adequacy of the VA opinion that cited to it. This is because even if there had been conversion of the puretone thresholds at the time of the prior final decision, it would not have manifestly changed the outcome at the time of the rating decision. In any case, at the time of the May 2007 rating decision, there were no positive nexus opinions to link the Veteran's hearing loss to his military service. Even if the RO had found the audiogram inaccurate and/or the VA opinion inadequate for lack of audiometric conversion from ASA units to ISO units, this would only have resulted in the obtaining of a new VA opinion, not a grant of service connection. And as we have seen, another VA opinion would not have resulted in a different opinion after conversion of the hearing thresholds. As these alleged errors would not have manifestly changed the outcome of the Veteran's claim, they do not rise to the level of CUE. The Veteran's final argument that the combat presumption was not applied also does not rise to the level of CUE. Under 38 U.S.C.A. § 1154(b), the Veteran's in-service noise exposure would be conceded if it was consistent with the circumstances of his combat service. Although the Board notes that the RO did not specifically cite 38 U.S.C.A. § 1154(b), the May 2007 rating decision noted the Veteran's Purple Heart and military occupational specialty of basic field artilleryman and concluded that exposure to extreme noise in service was conceded. Despite the lack of a specific citation to 38 U.S.C.A. § 1154(b), the RO clearly did properly apply the combat presumption in the May 2007 rating decision and conceded in-service noise exposure. Moreover, even if the RO had incorrectly applied 38 U.S.C.A. § 1154(b), the case was denied for a lack of in-service hearing loss and a medical nexus, not a lack of in-service noise exposure. The application of 38 U.S.C.A. § 1154(b) to establish an in-service event does not provide a medical nexus between such an in-service event and a current disability. It is clear from the May 2007 rating decision that the RO denied service connection for bilateral hearing loss because it determined based on the evidence of record, including the negative VA opinion with no other contradictory opinion, that the Veteran's bilateral hearing loss was not caused or aggravated by his in-service noise exposure. There is no evidence showing that this was based on other than the correct facts at the time of the decision. Further, the law and regulations at that time did not allow for service connection without medical evidence establishing a nexus between the Veteran's service and his current disability. The Board finds there is simply no evidence of record indicating that the relevant facts or appropriate regulations were not considered in rendering this decision. Accordingly, the Board finds that the Veteran has not raised, nor has the record suggested, any error of fact or law which is such that it would compel the conclusion that the result would have been manifestly different but for the error. Thus, there is no indication that the RO's May 2007 denial of the Veteran's claim for service connection for bilateral hearing loss was "undebatably incorrect" so as to warrant a finding of CUE. See Russell, 3 Vet. App. at 313. Although the Veteran may disagree with the RO's findings in the May 2007 rating decision, the Court has determined that an assertion that the RO improperly weighed or evaluated evidence can never rise to the level of CUE. See Fugo, 6 Vet. App. at 43. Therefore, the Board concludes that, the record does not establish that, but for an error in the May 2007 rating decision, service connection would have granted for bilateral hearing loss. As such, the criteria for a finding of CUE in the May 2007 rating decision have not been met. ORDER The claim of clear and unmistakable error in the May 21, 2007, rating decision that denied entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs