Citation Nr: 1624867 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 14-43 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date earlier than March 24, 2011, for the grant of service connection for hearing loss, based on clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). FINDINGS OF FACT 1. The Veteran filed a claim for service connection for right ear disability in May 1954. 2. In an unappealed rating decision issued in July 1954, the RO denied service connection for a right ear disability. 3. On March 25, 2011, the Veteran submitted a claim of entitlement to service connection for bilateral hearing loss. 4. In an unappealed rating decision issued in March 2012, the RO granted service connection for bilateral hearing loss and assigned an effective date of March 25, 2011. 5. The Veteran has not identified any error in the July 1954 or March 2012 rating decision that is undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. CONCLUSION OF LAW The Veteran has not filed a valid claim of CUE in the July 1954 rating decision denying service connection for right ear disability or in the March 2012 rating decision assigning an effective date of March 25, 2011, for service connection for bilateral hearing loss. 38 C.F.R. § 3.105 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As an initial matter, the Board notes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to claims of CUE, as the determination is one solely of law, and the matter is determined on the basis of the record as it existed at the time of the decision in issue. See Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Analysis In May 1954, the Veteran filed his initial claim of service connection for a right ear disability. In a July 19, 1954, rating decision, the RO denied service connection for the right ear disability, and the same month, the RO notified the Veteran of the determination and of his appellate rights. In August 1954, a sickbay record from the USS Kassan Bay was received. It did not include any pertinent evidence regarding the Veteran's right ear or hearing loss. No communication of any kind was received from the Veteran or his representative within one year of notice of the denial of service connection. The July 19, 1954, decision became final. The next communication from the Veteran or his representative was on March 25, 2011, when he submitted a claim of entitlement to service connection for bilateral hearing loss. By rating decision dated in March 2012, the RO granted service connection for hearing loss, effective March 25, 2011, the date of receipt of the claim. The Veteran was informed of the decision and his appellate rights in a letter sent in March 2012. He did not submit a timely notice of disagreement or any evidence relevant to the effective date for service connection within the appeal period. If a Veteran does not file a timely notice of disagreement within one year of receiving notice of the determination, the decision becomes final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103. An unappealed rating decision, however, only becomes final in the absence of clear and unmistakable error. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). The effective date for a grant of service connection based on a claim received more than one year after a claimant's discharge from service is the later of the date of receipt of claim and the date entitlement arose, and the effective date for a grant of service connection on the basis of the receipt of new and material evidence, other than service department records, following a final prior disallowance is the date of receipt of the application to reopen or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. CUE is determined by three criteria: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242 (1994); see Russell v. Principi, 3 Vet. App. 310 (1992). CUE 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, 43-44 (1993). A disagreement with how facts were evaluated is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In other words, to present a valid claim of CUE, the claimant cannot simply request that VA reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). The mere misinterpretation of facts also does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The evidence of record at the time of the July 1954 rating decision which denied service connection for a right ear disability consisted of the Veteran's service treatment records, his application for compensation and a private audiological report. The claim was denied in July 1954 as there was no record during active duty of a right ear disability. The service treatment records reveal that whispered voice testing conducted in March 1943 was determined to be 15/15 and clinical evaluation of the ears was determined to be normal. In September 1945, the Veteran underwent audiometry examination. Physical examination revealed the right ear drum appeared to be retracted but without scarring. No diagnosis was made. There was no indication that the Veteran experienced hearing loss in the right ear. No pertinent abnormalities were noted on the report of the November 1945 separation examination. Whispered voice testing disclosed 15/15 hearing and clinical evaluation of the ears revealed no abnormality. A May 1954 Medical Affidavit indicates the Veteran had symptoms of hearing impairment in the right ear. Physical examination was conducted. The Veteran could hear the spoken voice at eight to 10 feet in the right ear and whisper voice at only two to three feet. Clinical findings were that the ears, nose and throat were essentially normal. Audiometer testing was conducted. A diagnosis of nerve deafness in the right ear was included. The examiner found that the Veteran would have no disability from the standpoint of employment with the only exception being an occupation where bilateral normal hearing was required. The Veteran essentially contends that the totality of the evidence establishes that his bilateral hearing loss is due to his noise exposure in service and that the proper effective date for the award of service connection is the date of receipt of the original claim in 1954 since VA now acknowledges that his bilateral hearing loss is service connected. While the Board can understand why the Veteran believes that the effective date for service connection should go back to the date of receipt of his original claim, the record reflects that the Veteran's initial claim for service connection for left ear hearing loss was received on March 25, 2011. Therefore, he has already been granted the earliest possible effective date for service connection for left ear hearing loss. With respect to the right ear, the earliest possible effective date for a grant based on the receipt of new and material evidence other than service department records is the date of receipt of the claim to reopen, which is the date assigned in the March 2012 rating decision. The Veteran has not identified any clear and unmistakable error in the March 2012 rating decision. While the Veteran argues that the July 1954 rating decision was wrong since the totality of the evidence shows that his hearing loss is service connected he has not identified any error in the July 1954 rating decision that is undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Therefore, his appeal for an earlier effective date for service connection for bilateral hearing loss based on clear and unmistakable error must be dismissed. ORDER The appeal for an effective date earlier than March 25, 2011, for service connection for bilateral hearing loss based on clear and unmistakable error is dismissed. . ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs