Citation Nr: 1757743 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-21 964A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a June 1996 rating decision that denied service connection for a deviated septum. 2. Whether there was CUE in a June 1996 rating decision that granted a noncompensable disability rating for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in July 2016, where it denied the Veteran's appeal as to whether there was CUE in a June 1996 rating decision that both denied service connection for a deviated septum and awarded an initial noncompensable disability rating for tinnitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2017, the Court issued a Memorandum Decision reversing the portion of the Board's decision that found no CUE in the June 1996 rating decision denying entitlement to service connection for a deviated septum, and remanded the matter for the proper disability rating and effective date for the award of benefits. In addition, the portion of the Board's July 2016 decision that found no CUE in the June 1996 award of a noncompensable rating for tinnitus was vacated and remanded for reajudication. The issues return to the Board for development consistent with the Court's decision. The Board notes that given the finding of CUE in the portion of the June 1996 rating decision which denied service connection for a deviated septum, a new effective date and disability rating must be assigned for that disability. As the Veteran is entitled to one review by the Secretary on all matters, the disability rating and effective date should first be assigned by the Agency of Original Jurisdiction (AOJ). 38 U.S.C. § 7104(a) (2012). If the Veteran is not satisfied with the assigned effective date or disability rating he should appeal the AOJ's decision. FINDINGS OF FACT 1. In a June 2017 Memorandum Decision, the Court reversed the portion of the Board's July 2016 decision that found no CUE in the June 1996 rating decision that denied entitlement to service connection for a deviated septum, and remanded the matter for the determination of the proper disability rating and effective date for the award of benefits. 2. In a June 1996 rating decision, the RO assigned a noncompensable evaluation for the Veteran's tinnitus; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 3. The June 1996 rating decision that determined that the Veteran's tinnitus was not persistent was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. CONCLUSIONS OF LAW 1. The portion of the June 1996 rating decision finding that service connection for a deviated septum was not warranted contained clear and unmistakable error. 38 U.S.C. § 5112 (2012); 38 C.F.R. § 3.105 (2017). 2. The RO's June 1996 rating decision that assigned a noncompensable evaluation for tinnitus is final. 38 U.S.C. § 7105 (1991); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (1995). 3. The criteria for revision of the June 1996 rating decision on the basis of CUE as to the claim for a compensable rating for tinnitus have not been met; a 10 percent disability evaluation for tinnitus is not warranted. 38 U.S.C.A. §§ 5109A, 1155 (1991, 2012); 38 C.F.R. §§ 3.105(a), 4.87, Diagnostic Code 6260 (1995, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Court has held that the duties to notify and assist do not apply to claims of CUE. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, the Board may proceed to adjudicate these claims with no prejudice to the Veteran. Deviated Septum By way of history, the Veteran underwent a retirement examination in July 1995 which noted the presence of a deviated septum. The evidence reflects that the Veteran sustained a broken nose in service for which he did not seek medical attention. Upon separation from service in January 1996, the Veteran filed a service connection claim for the deviated septum. The RO denied the Veteran's claim in a June 1996 rating decision, finding no presence of in-service treatment for this disability. The June 1996 rating decision became final when the Veteran failed to file a timely notice of disagreement or submit evidence within one year of the decision. See 38 U.S.C. § 7105 (1991); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (1995). In September 2010, the RO found no CUE in its June 1996 rating decision. The Veteran appealed, and in July 2016, the Board determined that new and material evidence had been received to reopen the Veteran's service connection claim and granted service connection for his deviated septum. However, the Board found no CUE in the original June 1996 rating decision, holding that, although the presence of a deviated septum was indicated on the Veteran's July 1995 retirement examination, service treatment records were devoid of any mention of a causal injury, and therefore reasonable minds could conclude that the Veteran's disability was not incurred in active service based on the available evidence of record at the time of the June 1996 rating decision. As noted above, the Court reversed that portion of the Boards July 2016 decision, holding that the RO's failure to apply the principle of presumptive service connection was undoubtedly outcome determinative since it would have resulted in the award of benefits for the Veteran's deviated septum, and remanded the matter for the proper disability rating and effective date for the award of benefits. Given the Court's finding, the June 1996 rating decision that denied service connection for a deviated septum contained CUE. Tinnitus In its July 2016 decision, the Board noted that the RO's assignment of an initial noncompensable evaluation for the Veteran's tinnitus was based on March 1996 VA examination report that noted "periodic" tinnitus in his left ear. The Board held that a higher rating was not warranted as a 10 percent disability rating required "recurrent" tinnitus pursuant to 30 C.F.R. § 4.87, Diagnostic Code 6100. As the Court pointed out in its aforementioned June 2017 Memorandum Decision, however, this was a misstatement of the law in effect in June 1996 - both in citation and substance - because the rating schedule at the time required a 10 percent disability rating for "persistent" tinnitus, not "recurrent" tinnitus. It was not until June 1999 that Diagnostic Code 6260 for tinnitus was effectively amended to replace the word "persistent" with the word "recurrent." See 64 Fed. Reg. 25,200, 25,206 (May 11, 1999); 30 C.F.R. § 4.87. As the question of whether the RO's interpretation of the law in its June 1996 decision was proper is a question for the Board in the first instance, the Court vacated and remanded the tinnitus claim for reajudication. As an initial matter, the Board finds that the June 1996 rating decision that awarded service connection for tinnitus and assigned a noncompensable evaluation was final. The record reflects that the Veteran was notified of the June 1996 rating decision later that month, and he did not appeal the decision within one year of its issuance. Further, the record does not reflect that new and material evidence was received within that year. Therefore, the June 1996 decision that assigned a noncompensable evaluation for the Veteran's service-connected tinnitus became final. See 38 U.S.C. § 7105 (1991); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (1995). To overcome the finality of the 1996 rating decision, the Veteran could show that it was clearly and unmistakably erroneous. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes CUE, the prior decision will be reversed or amended. See 38 C.F.R. § 3.105(a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. 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. The Court has established a three-pronged test, each of which must be met before CUE is established: either (1) 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). The evidence of record at the time of the June 1996 rating decision included the Veteran's service treatment records and a VA audiological examination dated March 1996. Upon examination, the examiner noted that the Veteran had periodic tinnitus in his left ear of moderate severity. In its June 1996 rating decision, the RO noted the above evidence and concluded that the Veteran's periodic tinnitus warranted only a noncompensable evaluation, as the record did not show persistent tinnitus. See 38 C.F.R. § 4.87, Diagnostic Code 6260 (1995). As to the first element of the CUE test, the Board finds that the correct facts as they were known at the time were considered in the June 1996 rating decision. In this regard the only evidence then of record as to this claim included the Veteran's service treatment records and the March 1996 VA audiological examination. Having established that the correct facts were considered by the RO, the other issue that must be addressed with regard to the first element of the test is whether the law at the time was correctly applied. For the following reasons, the Board finds that it was. The law in effect at the time of the June 1996 rating decision provided service connection only for tinnitus that was "persistent" as a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87, Diagnostic Code 6260 (1995). The Board again notes that, effective June 10, 1999, VA regulations were modified to allow for service connection for "recurrent" tinnitus, a more a liberalizing change. See 64 Fed. Reg. 25,200 (May 11, 1999); 38 C.F.R. § 4.87, Diagnostic Code 6260 (1999). Thus, at the time of the June 1996 rating decision, a maximum 10 percent evaluation would have been warranted for the Veteran's tinnitus with a showing that it was persistent. The March 1996 VA examiner noted on the examination report the Veteran's tinnitus was periodic, rather than constant, and the Veteran himself described moderate difficulty with tinnitus in his left ear. Thus, the evidence does not indicate that the Veteran experienced persistent tinnitus at the time of the March 1996 VA examination. The Board acknowledges that the March 1996 VA examination report did not contain the term "persistent" as a means of delineating the severity of a veteran's tinnitus, as set forth in Diagnostic Code 6260 at the time, but instead used the terms "periodic" and "constant." However, the Board observes that the term "periodic" is synonymous with "recurrent" and "persistent" is synonymous with "continuing." Recurrent and Persistent Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/recurrent (last visited December 5, 2017). Thus, it was not until the regulation was liberalized in June 1999 that periodic, or recurrent, tinnitus would have warranted a compensable evaluation. Accordingly, the Board finds no improper application of the applicable law at the time, and therefore, as there was no misapplication of law or fact, there can be no CUE. For these reasons, the Board finds that the rating decision of June 1996 as to the assignment of a noncompensable evaluation for the Veteran's tinnitus did not contain CUE. 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). ORDER Clear and unmistakable error existed in the June 1996 rating decision that denied service connection for a deviated septum. Clear and unmistakable error did not exist in the June 1996 rating decision that assigned a noncompensable disability evaluation for tinnitus; entitlement to a 10 percent disability rating on this basis is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs