Citation Nr: 1627639 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 11-05 352A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than March 1, 2010, for the award of service connection for tinnitus, to include whether there was clear and unmistakable error (CUE) in a June 1997 rating decision that denied service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to December 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The record before the Board consists of the physical claims files and electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The Board remanded the appealed claim in September 2015 in order for the RO to consider as an initial matter the claim for CUE in a June 1997 RO decision denying service connection for tinnitus, as inextricably intertwined with the then-appealed claim of entitlement to an earlier effective date for service connection for tinnitus. Harris v. Derwinski, 1 Vet. App. 180 (1991). The appealed issue, expanded to include CUE as a basis of claim, has now returned for Board review. FINDINGS OF FACT 1. On November 20, 1996, the Veteran submitted a claim for service connection for tinnitus. 2. It is undebatable that 1994 VA records of treatment for tinnitus supporting a link to noise exposure in service were in VA's possession at the time of the prior, June 1997 RO decision denying the Veteran's November 1996 claim for service connection for tinnitus, but that these records of treatment were not before the RO adjudicator who then denied service connection for tinnitus. 3. Reasonable minds could not differ that the decision denying service connection for tinnitus in June 1997 would have been manifestly different but for the adjudicator not having the 1994 VA records of treatment for tinnitus before him or her. 4. The evidence of record at the time of the June 1997 RO decision favored a causal link between noise exposure in service and the Veteran's tinnitus; contrary evidence was not then of record. CONCLUSIONS OF LAW 1. The June 1997 decision which denied service connection for tinnitus did contain CUE. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.105(a) (2015). 2. The criteria for an effective date of November 20, 1996, and no earlier, for the award of service connection for tinnitus have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board herein grants the full benefit sought on appeal. Hence there is no reasonable possibility that additional notice or assistance would further the claim, and accordingly none is required. II. Earlier Effective Date Based on CUE Legal Criteria Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015). For claims that are granted following a request to reopen or following the submission of new and material evidence to reopen a claim, the effective date of an award of service connection will be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(1)(ii), (r) (2015). An unappealed decision of the RO becomes final and binding and is not subject to revision on the same factual basis in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). In determining whether a prior determination involves CUE, the Court has provided a three-prong test, and all three parts must be present to support a finding of CUE: (1). "[E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., 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 clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question." Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). In Fugo v. Brown, 6 Vet. App. 40, 43 (1993), the Court held that CUE is an error of fact or law which, 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. Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity unless it is the kind of error which if true would be CUE on its face. Otherwise, the claimant must provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Neither a claim alleging improper weighing and evaluating of the evidence in a previous adjudication, nor general, non-specific claims (including sweeping allegations of failures to follow the regulations or to provide due process), meet the restrictive definition of CUE. Fugo, 6 Vet. App. at 44. Thus, in order to show CUE, the evidence must show that the law was incorrectly applied to the facts as they were known at the time, and that had the error not occurred the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Analysis The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for tinnitus, including based on clear and unmistakable error (CUE) in a prior RO decision in June 1997 which denied service connection for tinnitus. The Veteran has contended, in effect, that the RO in its June 16, 1997 decision denying service connection for tinnitus did not then have before the adjudicator favorable VA treatment records supporting tinnitus arising from noise exposure in service, since the decision failed to note this favorable evidence. It is further contended that had such evidence been before the adjudicator service connection would have been granted at that time. The record reflects that the RO granted service connection for bilateral hearing loss in December 1972 including based on an August 1972 hearing loss examination wherein the Veteran was noted to have been exposed to excess noise as a weapons mechanic in service. He was then found to have sensorineural hearing loss attributable to in-service noise exposure. At the time of that August 1972 examination the Veteran denied having tinnitus in either ear. In an August 1994 submission the Veteran sought a higher, compensable rating for his bilateral hearing loss, informing of worsening hearing loss for which he now wore hearing aids. He did not then address tinnitus. The Veteran was afforded a VA audiometric examination in December 1994 which showed increased hearing loss but which did not address tinnitus. The Veteran submitted a claim for service connection for tinnitus on November 20, 1996. He did not then provide a basis of claim, but in May 1997 he was afforded an audiology examination for his tinnitus. A pure tone hearing test was again administered, and the Veteran's history of exposure to machine gun and jet engine noise in service was noted. The Veteran associated his hearing loss as well as tinnitus with this noise exposure. However, while the examiner addressed the severity of the Veteran's tinnitus, the examiner failed to provide any opinion of etiology. VA treatment records were received into the record on June 9, 1997, which included records of audiology treatment at the Miami VA Medical Center (VAMC). Among these were 1994 records of treatment for hearing loss and tinnitus. In a June 1994 treatment record, the Veteran reported a history of hearing loss since 1973 and of tinnitus for 20 years. He was noted to have been a weapons specialist. The treating clinician then only assessed "Hearing loss [secondary to] weapons." A follow-up audiology treatment record from July 1994, also received into the record on June 9, 1997, again noted the Veteran's complaint of bilateral hearing loss since noise exposure in service, and of tinnitus also since service. The treating clinician then only addressed the hearing loss, assessing bilateral, moderately severe high-frequency sensorineural hearing loss. Audiology clinic records from July and August of 1994 documented fitting the Veteran for hearing aids without further reference to tinnitus. In the June 16, 1997 RO decision denying service connection for tinnitus, the RO asserted, "Evidence received in connection with this claim fails to establish any relationship between tinnitus and any disease or injury during military service. It is therefore not a well-grounded claim which can be resolved." The Board recognizes that RO decisions in 1997 were frequently terser than now. Yet the RO's conclusion that the claim was not well grounded because the evidence failed to establish "any relationship between tinnitus and any disease or injury during military service," without the RO addressing or even recognizing the VA treatment records received from the Miami VAMC just seven days earlier, strongly suggests that those VAMC Miami audiology treatment records from 1994 were not before the VA adjudicator who in June 1997 denied service connection for tinnitus. Additionally, the June 1997 decision lists relevant evidence of record, including VA records of examination and treatment prior to and subsequent to the 1994 treatment records, while failing to list the 1994 treatment records. On these facts, the Board concludes that the 1994 Miami VAMC treatment records addressing tinnitus in fact were not before the adjudicator who in June 1997 denied service connection for tinnitus. The Board additionally concludes that the results of that adjudication would have been manifestly different but for the error of the received VAMC Miami 1994 treatment records not being before the RO adjudicator in June 1997. At the least, these records would have resulted in the RO finding the claim well-grounded. At the time of the June 1997 decision, the claimant had an initial burden to produce evidence that the claim was well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim was defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In Tirpak v. Derwinski, the Court held that a well-grounded claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board finds it undebatable that the evidence in VA's possession, inclusive of the 1994 Miami VAMC treatment records addressing tinnitus, presented a well-grounded claim at the time of the June 1997 RO decision denying service connection for tinnitus. Thus, the merits of the claim based on all the evidence - inclusive of the 1994 Miami VAMC treatment records - would have been considered but for this error, which the June 1997 examiner did not do, having not found the claim well-grounded. Additionally, based on the record as it then existed, the Board believes that this well-grounded claim would have inevitably led to service connection for tinnitus being granted, based on tinnitus and hearing loss being associated in clinical records with the Veteran's in-service noise exposure, based on the Veteran's then most recent VA audiology examination in May 1997, which was provided to address the Veteran's tinnitus, and based on the absence of contrary evidence. The Veteran asserted at that May 1997 tinnitus examination that he had hearing loss and tinnitus associated with machine gun and jet engine noise in service, and that examiner neither contradicted nor challenged that assertion. The Board accordingly finds CUE in the June 1997 RO decision denying service connection for tinnitus. 38 U.S.C.A. § 5109A ; 38 C.F.R. §§ 3.104 , 3.105(a); Damrel. The Board additionally finds that service connection for tinnitus is warranted effective from November 20, 1996, the date of the original claim. ORDER The June 1997 RO decision denying service connection for tinnitus is revisited on the basis of CUE. An effective date of November 20, 1996, and no earlier, is granted for service connection for tinnitus. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs