Citation Nr: 1417112 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 10-03 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for hearing loss in the left ear. 2. Entitlement to an effective date for an award of service connection for tinnitus, prior to January 22, 2008. 3. Whether there was clear and unmistakable error (CUE) in the March 21, 1996 rating decision that assigned a noncompensable evaluation for low back strain. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from April 1990 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Des Moines, Iowa Department of Veterans Affairs (VA) Regional Office (RO). In its September 2012 decision, the Board found new and material evidence had been received, and reopened the claim for service connection for hearing loss in the left ear. The claims for service connection for left ear hearing loss on the merits and for tinnitus were remanded for additional development of the record. A November 2012 rating decision granted service connection for tinnitus, and assigned January 22, 2008 as the effective date of the award. The Veteran disagreed with the effective date. The issue of entitlement to an increased rating for low back strain was raised in a March 2014 communication from the Veteran's representative, 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. 38 C.F.R. § 19.9(b) (2013). FINDINGS OF FACT 1. The Veteran's preexisting hearing loss in the left ear increased in severity during service, in part, due to causes other than injury in a 1991 motorcycle accident. 2. The Veteran's claims for service connection for tinnitus were denied by the RO in November 2001 and again in April 2007. The Veteran did not file a timely appeal of either decision, nor was new and material evidence received within one year of notice of the decisions. 3. The Veteran submitted a request to reopen the claim for service connection for tinnitus on January 22, 2008; service connection was subsequently granted for tinnitus effective from January 22, 2008. 4. By rating action dated March 1996, the RO granted service connection for low back strain and assigned a noncompensable evaluation. 2. The March 1996 rating decision was supported by the evidence of record at the time the decision was rendered. 3. There is no undebatable error of fact or law in the March 1996 rating action that would change the outcome. CONCLUSIONS OF LAW 1. A pre-existing hearing loss in the left ear was aggravated by active service. §§ 1110, 1131, 1153, 5107 (West 2002); 38 C.F.R. § 3.306 (2013). 2. The criteria for an award of service connection for tinnitus, prior to January 22, 2008, have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2013). 3. The March 1996 rating decision was not clearly erroneous in assigning a noncompensable evaluation for low back strain. 38 C.F.R. § 3.105(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the claims. With respect to the claim of CUE, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Livesay v. Principi, 15 Vet. App. 165 (2001) that the VCAA did not apply to motions for CUE. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant was advised of VA's duties to notify and assist in the development of the claim for service connection for hearing loss in the left ear by letters dated in February, April, June and October 2008, prior to the initial adjudication of the claim. These letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged notice that was less than adequate. The appeal pertaining to the effective date for the award of service connection for tinnitus is from the initial effective date assigned with the award of service connection. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). A statement of the case properly provided notice on the downstream issue of entitlement to an earlier effective date. The Veteran's service treatment records and pertinent postservice treatment records have been secured, and he has been afforded examinations to determine the existence of a hearing loss in the left ear. The Board finds that the record, as it stands, includes competent evidence adequate for the Board to decide the matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Factual background and analysis Service connection Left Ear Hearing loss An audiometric test was conducted on the enlistment examination in March 1990. That test revealed the hearing threshold levels in decibels were 0, 0, 0, 10, 50 and 65, at 500, 1,000, 2,000, 3,000, 4,000 and 6,000 Hertz, respectively. Another audiometric test was also conducted for the enlistment examination and that revealed the hearing threshold levels in decibels were 0, 0, 0, 10, 55 and 80, at 500, 1,000, 2,000, 3,000, 4,000 and 6,000 Hertz, respectively. Defective hearing was noted. An audiogram in March 1991 showed the hearing threshold levels in decibels in the left ear were 10, 0, 0, 10, 70 and 85 at 500, 1,000, 2,000, 3,000, 4,000 and 6,000 Hertz, respectively. The service treatment records show the Veteran was involved in a motorcycle accident in June 1991. He suffered a loss of consciousness. The pertinent diagnoses were closed head injury and basilar skull fracture. It was determined that the accident was not incurred in the line of duty. The Veteran was again afforded audiometric testing in October 1991. The hearing threshold levels in decibels in the left ear were 0, 10, 5, 15, 65 and 80 at 500, 1,000, 2,000, 3,000, 4,000 and 6,000 Hertz, respectively. It was stated he had an asymmetrical hearing loss. The report of medical history on the separation examination shows the Veteran reported hearing loss. The discharge certificate shows the Veteran was an F-15 aircraft maintenance specialist. On VA audiometric examination in July 2008, the Veteran reported noise exposure from F-15's. He denied occupational and recreational noise exposure. Following audiometric testing, it was concluded the Veteran had a mild to profound sensorineural hearing loss in the left ear. Later in July 2008, the Veteran's claims folder was reviewed by another VA provider for an opinion concerning the Veteran's hearing loss. It was stated that the July 2008 audiogram revealed an asymmetrical sensorineural hearing loss in the left ear. It was noted that the results at 4,000 and 6,000 Hertz were essentially unchanged when compared to the data in the audiograms done on service entrance and one year later. It was concluded the Veteran had a hearing loss in the left ear prior to service and there was no evidence it was aggravated in service due to alleged noise exposure. It was noted the left ear had normal hearing acuity below 4,000 Hertz without significant threshold shifts and, therefore, the current degree of sensorineural hearing loss was not related to noise exposure in service. It was further stated there was no evidence that the closed head injury at the time of the June 1991 motorcycle accident caused the bilateral sensorineural hearing loss or aggravated the preexisting hearing loss in the left ear. Another VA audiometric examination was conducted in October 2012. The audiometric tests revealed sensorineural hearing loss in the left ear. Based on a review of the claims folder, the examiner concluded it was at least as likely as not that the Veteran's hearing loss was caused by or a result of service. The examiner noted the Veteran had exposure to jet engine noise as a mechanic. The audiogram following the motorcycle accident indicated progression of the hearing loss in the left ear with a significant auditory shift at 4,000 and 6,000 Hertz, with no significant shift in the right ear, which remained normal. The examiner opined that, given audiograms that indicated progression of the preexisting hearing loss in the left ear following the skull fracture, it was at least as likely as not that a portion of the hearing loss in the left ear was related to this injury. She commented that the preexisting hearing loss in the left ear was aggravated beyond normal progression during service. When asked to provide a clarifying opinion, the examiner stated she was unable to do so without resort to speculation. She reiterated that the preexisting hearing loss in the left was clearly noted to have progressed following the closed head injury. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. § 1111. For purposes of aggravation of a preexisting injury, such aggravation will be said to have occurred where there is an increase of disability during active military, naval or air service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Paulson v. Brown, 7 Vet. App. 466, 468 (1995). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). In addition, temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991), Browder v. Brown, 5 Vet. App. 268, 271 (1993). See also Daniels v. Gober, 10 Vet. App. 474, 479 (1997). If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder on a direct-incurrence basis, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by such standards must be currently present, and service connection is possible if a current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In Hensley v. Brown, 5 Vet. App. 155, the Court held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Since the entrance examination demonstrates the Veteran had a left ear hearing loss prior to service, the presumption of soundness at entrance does not attach in this case. See Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The issue in this case is whether the Veteran's preexisting left ear hearing loss chronically increased in severity during service. In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent chronic increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). The Board acknowledges that it was concluded following the July 2008 VA examination that the Veteran's preexisting hearing loss in the left ear was not aggravated by service, to include the closed head injury. It was further stated that his current hearing loss was not due to in-service noise exposure. In contrast, following the October 2012 VA audiometric examination, the examiner stated that there was progression of the left ear hearing loss in service following the skull fracture. She concluded that at least a portion of the hearing loss in the left ear was related to that injury. As noted above, since it was determined that the in-service motorcycle accident was not incurred in the line of duty, injury or disease resulting from such accident may not be considered for service connection. In this case, however, the examiner did not attribute the entire hearing loss to the motorcycle accident. She was unable to provide any further explanation. In view of the fact the Veteran's work on aircraft undoubtedly subjected him to acoustic trauma during service, the Board, resolving reasonable doubt in his favor, concludes that the hearing loss in the left ear increased in severity during service. Service connection is, therefore warranted. Earlier effective date A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155. Except as otherwise provided, the effective date of an evaluation and award of service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). The effective date for an award of service connection based on a reopened claim shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r). By rating actions dated November 2001 and April 2007, the RO denied the Veteran's claim for service connection for tinnitus. He was notified of each of these determinations and of his right to appeal, but a timely appeal was not received, nor was new and material evidence received within one year. Accordingly, these determinations became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. The Veteran subsequently filed another request to reopen the claim for service connection for tinnitus on January 22, 2008, and service connection was then granted by the RO, effective from that date. The Board is bound by law to find that the 2001 and 2007 decisions denying his claims are final decisions. Under effective date law, if a Veteran is denied service connection and allows that denial to become final (by not filing a timely appeal or submitting new and material evidence), then if the benefit is awarded pursuant to a subsequent request by the Veteran to reopen the claim, the effective date is the date of the reopened claim, not the original claim. The Veteran was notified in connection with the 2001 and 2007 decisions that he had one year to file an appeal if he disagreed with the decision. However, he did not do so. Therefore, the decisions became final, and rules of finality preclude assignment of an effective date prior to January 22, 2008, the date he later filed a request to reopen which led to the grant of the benefit. CUE A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 U.S.C.A. § 7105 (West 2002). Pursuant to 38 C.F.R. § 3.105(a), previous determinations, which are final and binding, will be accepted as correct in the absence of clear and unmistakable error. Where the evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The evidence of record at the time of the March 1996 rating decision that granted service connection for low back strain, and assigned a noncompensable evaluation for it included the service treatment records and private and VA medical records. The Veteran submitted a claim for service connection for a low back disability in February 1995. VA outpatient treatment records show the Veteran was seen in February 1995 and complained of low back pain which increased with activity. X-rays of the lumbosacral spine were normal. The diagnostic impression was low back pain with history of spondylolisthesis. The Veteran was hospitalized at a private facility for unrelated complaints in June 1995. During the hospitalization, he complained of a lot of low back pain, and he was placed on medical restriction to help him get over that. He was also given aspirin which he said had helped him in the past. Valium was added for muscle relaxation and to help decrease muscle spasms. He was feeling better and was off medical restriction, but after a short while, it had to be continued. The Veteran was transferred to a VA hospital and was hospitalized there from June to July 1995. The discharge summary shows a physical examination was unremarkable, and no diagnosis pertaining to the low back was made. The Veteran failed to report for a VA examination to evaluate his spine condition in November 1995. Based on the evidence of record, the RO, by rating action dated March 1996, granted service connection for low back strain, and assigned a noncompensable evaluation, effective February 16, 1995. The rating decision indicated the evaluation would be reconsidered upon notification of the Veteran's willingness to report for a VA examination or other medical evidence showing the current severity of his low back disability. The Veteran asserts there is CUE in the March 1996 rating decision in the failure to assign a compensable evaluation for low back strain. He argues that under the rating criteria in effect at that time, a 10 percent evaluation should have been assigned for pain on motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5295 (as in effect in 1995). In order to find that a rating action was clearly and unmistakably erroneous, it must be concluded that the evidence of record at the time the rating was assigned was such that the only possible conclusion was that a higher rating was warranted. CUE requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Such a conclusion cannot be made in this case. In Graves v. Brown, 6 Vet. App. 166 (1994), the Court described the high burden of proof required for a showing of CUE: In order for there to be "clear and unmistakable error" under 38 C.F.R. § 3.105(d), there must have been an error in the prior adjudication of the claim. See Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Either the correct facts, as they were known at the time, were not before the adjudicator or the regulatory provisions extant at the time were incorrectly applied. Id., at 313. With regard to challenges to prior decisions by a claimant under 38 C.F.R. § 3.105(a), the Court held in Russell that a "clear and unmistakable error" must be the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made. Id. "It must always be remembered that [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." Fugo v. Brown, 6 Vet. App. 40, 43 [1993]. Errors that are "clear and unmistakable" are undebatable; that is, reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Id. A determination that there was a "clear and unmistakable error" must be based on the record and the law that existed at the time of the prior decision of the agency of original jurisdiction or [Board], and subsequently developed evidence is not applicable. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Graves, 6 Vet. App. at 170-71. To the extent the Veteran argues that the evidence at the time of the March 1996 rating decision warranted a compensable evaluation, a mere disagreement with how the RO evaluated the facts before it in the prior decisions does not constitute a valid claim of CUE. Luallen v. Brown, 8 Vet. App. 92 (1995); Damrel v. Brown, 6 Vet. App. 242 (1994). In essence, the Veteran's argument that a higher rating should have been assigned boils down to a request to reweigh the evidence. This is not a proper basis on which CUE may be found. In order to find CUE, the evidence must be undebatable. Such is not the case here. The Board concedes the Veteran reported low back pain in February 1995, and was apparently treated for it on private hospitalization in June 1995. The nature of the Veteran's argument is such that it is not a proper basis for a determination of CUE in the March 1996 rating decision. In light of the above, the Board is, accordingly, constrained from finding that there was CUE in the March 1996 rating actions. ORDER Service connection for hearing loss in the left ear is warranted. To this extent, the appeal is granted. An effective date for an award of service connection for tinnitus, prior to January 22, 2008 is not warranted. A March 1996 rating decision that assigned a noncompensable evaluation for low back strain was not clearly and unmistakably erroneous. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs