Citation Nr: 1751882	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  14-07 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an earlier effective date for service connection of tinnitus, to include as based upon a clear and unmistakable error.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse. 


ATTORNEY FOR THE BOARD

K. Wysokinski, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1975 to August 1980.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Lost Angeles, California.  Jurisdiction of the appeal has since been transferred to the RO in Atlanta, Georgia.  

The Veteran presented sworn testimony at a hearing before the undersigned in May 2017.  A transcript of that hearing is of record.


FINDING OF FACT

Although the correct facts, as they were known at the time, were before the RO in April 2004, the statutory or regulatory provisions then extant were not correctly applied, and the failure to correctly apply those laws and regulations manifestly changed the outcome the April 2004 rating decision.


CONCLUSION OF LAW

The April 2004 rating decision was clearly and unmistakably erroneous.  38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is entitled to an earlier effective date of September 10, 2003 as the failure to consider the Veteran's competent evidence regarding the existence and onset of his tinnitus constituted a clear and unmistakable error (CUE).  A previous RO determination that was final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a).  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. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2014).

Once a decision becomes final, it may only be revised by a showing of CUE.  See 38 C.F.R. §§ 3.104, 3.105.  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 results would have been manifestly different but for the error.  Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Hines v. Principi, 18 Vet. App. 227, 235 (2004).

Clear and unmistakable error is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered.  Evans v. McDonald, 27 Vet. App. 180, 185 (2014) (internal citations omitted).  Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a).  

As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity.  See Simmons v. Principi, 17 Vet. App. 104 (2003).  The Board will therefore adjudicate the merits of his claim.

The undisputed facts show that in April 2004 the Veteran's DD 214 reflected that he had served as a tank operator which constitutes a conceded noise exposure to service.  Additionally, the Veteran's September 2003 application indicated that he presently had tinnitus and that it had begun after he was exposed to noise as a tank operator.  Nearly two years prior to the issuance of the April 2004 rating decision, the Court of Appeals for Veteran's Claims had explicitly interpreted VA laws and regulations to hold that a veteran is competent to testify to in-service acoustic trauma, trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation."  Charles v. Principi, 16 Vet. App 370, 374-75 (2002).  

Consequently it is undebatable that the evidence of record at the time of the April 2004 rating decision indicated that the Veteran had tinnitus which had begun in service, and that he had suffered acoustic trauma.  Unfortunately, the April 2004 rating decision denied service connection for tinnitus because there was no evidence of a present disability or in-service incurrence.   The failure to properly apply the relevant VA legal principles to the evidence regarding the Veteran's tinnitus specifically resulted in a denial of benefits.  Accordingly, this failure constitutes a clear and unmistakable error and requires that the Veteran's tinnitus be service-connected to the date he first applied for benefits, here September 10, 2003.  


ORDER

Entitlement to an earlier effective date of September 10, 2003 is granted based upon a clear and unmistakable error.  



____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs