Citation Nr: 1628235 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 12-07 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether the RO's March 1993 rating decision that denied service connection for hearing loss and tinnitus should be reversed or revised on the basis of clear and unmistakable error (CUE). 2. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran served on active duty during World War II, from September 1943 to April 1946. He died in July 2010. The appellant is his surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision by the RO in St. Louis, Missouri that denied entitlement to DIC under 38 U.S.C.A. § 1318. The Board remanded this appeal in April 2014 and August 2014 for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The unappealed March 1993 rating decision, in considering the evidence and law as it then existed, committed clear and unmistakable error; but for such error, the outcome would have been manifestly different and service connection for hearing loss and tinnitus, with a combined rating of 100 percent, would have been granted from at least the 10 year period prior to the Veteran's death in July 2010. 2. Based on the above findings, at the time of his death in July 2010, the Veteran was entitled to receive compensation for service-connected disabilities rated by VA as 100 percent disabling, combined, for a continuous period of at least 10 years immediately preceding death, i.e. since December 2, 1992. CONCLUSIONS OF LAW 1. The RO's March 1993 unappealed rating decision that denied service connection for hearing loss and tinnitus was clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2015). 2. The criteria for DIC benefits under 38 U.S.C.A. § 1318 are satisfied. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. Given the favorable disposition as to both the CUE and DIC claims, no further discussion of the duties as to these matters is necessary. CUE The appellant claims that the RO's March 1993 rating decision contained CUE because service connection for hearing loss and tinnitus was denied. Because the Veteran did not file a notice of disagreement with the March 1993 rating decision, it is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). Rating decisions that are final and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). In order to determine whether CUE was present in a prior determination it must be shown that (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than 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). CUE is a very specific and rare kind of error. CUE is the kind of error to which reasonable minds could not differ that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). The mere misinterpretation of facts or failure to fulfill the duty to assist does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel, 6 Vet. App. at 245 (holding that a valid CUE claim requires that the Veteran assert more than a disagreement as to how the facts were weighed or evaluated). Simply claiming CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Fugo, 6 Vet. App. at 44; see also Russell, 3 Vet. App. 310. Similarly, neither are too broad general and unspecified allegations of error based on the failure to follow regulations, failure to give due process, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of "error." See Fugo, 6 Vet. App. at 44. If a claimant wishes to reasonably raise a CUE claim, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant also must give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Id. There is a presumption of validity to otherwise final decisions, and the presumption is even stronger where the decision is being collaterally attacked as in a CUE claim. Id. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. May v. Nicholson, 19 Vet. App. 310, 313 (2005). The laws at the time of the RO or Board decision being attacked should be used. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010) (finding that it was not CUE to determine that a claim was not pending when the regulations pertaining to notice and denial at the time of such notice were followed). An unappealed March 1993 rating decision denied service connection for hearing loss and tinnitus on the basis that the Veteran had normal hearing on service entrance and separation examinations, there was no record of treatment for hearing loss during service or within one year after service separation and no record of a diagnosis of tinnitus until October 1978, more than 30 years after service separation. The appellant asserts that the RO erroneously failed to grant service connection for hearing loss and tinnitus in the March 1993 rating decision. Specifically, she argues that the Veteran was "very hard of hearing" from the time of his service discharge. See November 2010 Notice of Disagreement. She further states that, at the time of the March 1993 denial, the Veteran "already had a severe hearing loss." She argues that, "if VA had actually done the same testing in 1993, they would have surely found him with severe hearing loss and eligible at that time for benefits" and her "receiving his DIC would not be in question today." See November 2010 Statement from appellant (received January 2011) and March 2012 VA Form Appeal to Board of Veterans' Appeals (substantive appeal). The appellant's statements are corroborated by statements from her (and the Veteran's) children and grandchildren. Review of the record shows that, at the time of the March 1993 rating decision, an October 1978 private audiometry report noted severe high frequency sensorineural nearing loss and questioned whether the etiology of the hearing loss was hereditary and/or partially noise induced. The audiology consultation report notes that the Veteran "has a history of being particularly aware of a hearing loss for about 15 years" and indicated "that when he was in the service he was near an artillery round which went off and after this he had some problems particularly with the right ear, but when he was discharged he was so anxious to get out that he did not report the problem, and then later on it became progressively worse." It is further noted that the Veteran had "had ringing in his ears, particularly on the left." The impression was "1) Sensory neural hearing loss. 2) Tinnitus secondary to #1." The Board finds that the March 1993 rating decision is legally incorrect. The evidence on file at that time indicates that the Veteran's hearing problems began while on active duty, these problems/symptoms were continuous from his service separation up to the time of the March 1993 rating decision and his tinnitus is secondary to his hearing loss. The evidence in support of this finding includes the lay statements from the Veteran made during the course of treatment (and 15 years prior to his original claim for service connection), which is exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Based on the foregoing, the Board finds that the evidence on file at the time of the March 1993 rating decision established continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) (1993). More importantly, the evidence on file at that time, supported the conclusion that the Veteran had hearing loss and tinnitus that was incurred during active service in accordance with 38 C.F.R. § 3.303(d) (1993). Consequently, the Board concludes that the correct facts, as well as the laws and regulations in effect at the time of the March 1993 rating decision, show that the Veteran was entitled to a grant of service connection for hearing loss and tinnitus. The Board also finds that reasonable minds could not differ as to this conclusion; it is undebatable that the Veteran was entitled to a grant of service connection at that time. As such, the March 1993 rating decision was the product of CUE, and should be revised accordingly. See 38 C.F.R. § 20.1403. DIC The appellant seeks entitlement to DIC benefits under 38 U.S.C.A. § 1318. For the reasons that follow, the Board concludes that entitlement to DIC benefits is established. Under 38 U.S.C.A. § 1318(a), DIC benefits may be payable to the surviving spouse of a deceased Veteran in the same manner as if the death were service-connected in certain instances. In order to establishment entitlement to DIC benefits under 38 U.S.C.A. § 1318, it must be shown that the veteran's death was not the result of his or her own willful misconduct and that at the time of death, the veteran was receiving, or was entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the veteran's release from active duty and for a period of not less than 5 years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war who died after September 30, 1999. The total rating may be based on application of the criteria in the rating schedule or on individual unemployability. 38 C.F.R. § 3.22(c); Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). Under 38 C.F.R. § 3.22(b) of the implementing regulation, "entitled to receive" means that the veteran filed a claim for disability compensation during his lifetime and one of the following circumstances is satisfied: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified but for clear and unmistakable error committed in a VA decision on a claim filed during the veteran's lifetime; or (2) additional evidence submitted to VA before or after the veteran's death consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA provides a basis for reopening a claim finally denied during the veteran's lifetime and for awarding a total service-connected disability rating retroactively; or (3) at the time of death the veteran had a service-connected disability rated totally disabling by VA, but was not receiving compensation because VA was paying the compensation to the veteran's dependents; VA was withholding the compensation under authority of 38 U.S.C.A. § 5314 to offset an indebtedness of the veteran; the veteran had not waived retired or retirement pay in order to receive compensation; VA was withholding payments under the provisions of 10 U.S.C.A. § 1174(h)(2); VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled continued payments based on a total service-connected disability rating; or VA was withholding payments under 38 U.S.C.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. 38 C.F.R. § 3.22(b). The Board finds that the Veteran was entitled to receive total disability compensation based on his service-connected hearing loss and tinnitus for at least 10 years prior to his death in July 2010 based on CUE in the March 1993 rating decision. See 38 C.F.R. § 3.22(b). A total rating for hearing loss had already been in effect since the August 6, 2001 date of the Veteran's reopened claim for this disability, there is no evidence that the hearing loss was less severe during the 13 month period prior to that date, and the Veteran's hearing loss would have been service connected from the date of his original claim for service connection for hearing loss and tinnitus but for CUE in the March 1993 rating decision, as discussed above. The Veteran's entitlement to a total rating for the ten-year requirement under 38 U.S.C.A. § 1318 is met. Accordingly, the criteria for DIC benefits under 38 U.S.C.A. § 1318 are satisfied and the appeal is granted. ORDER The motion for reversal and revision of the March 1993 rating decision on the basis of clear and unmistakable error is granted. Entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318 is granted. ________________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs