Citation Nr: 1742806 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 16-29 573 ) 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 May 2015 rating decision which denied service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from April 1962 to January 1966 and from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2014, May 2015, and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas and Little Rock, Arkansas. The issues on appeal were certified to the Board by the RO in Houston, Texas. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran perfected his appeal of the May 2015 rating decision denying service connection for tinnitus. 2. The evidence is at least in relative equipoise as to whether the Veteran's tinnitus is related to active duty service. CONCLUSIONS OF LAW 1. The May 2015 rating decision denying service connection for tinnitus cannot be the subject of CUE because it is not final; therefore, there remain no allegations of errors of fact or law for appellate consideration at this time with respect to a claim of CUE. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105(a)(2016). 2. The criteria for service connection for tinnitus are satisfied. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380 - 81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. II. Duties to Notify and Assist With respect to the claim decided, VA has met all statutory and regulatory notice and duty to assist provisions, except as provided in the remand below. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. CUE Claim In his June 2016 substantive appeal, the Veteran raised a claim of CUE in the May 2015 rating decision in denying service connection for tinnitus. The Veteran argued that the RO failed to follow the provisions of VA Fast Letter 10-35 and the decision in Charles v. Principi, 16 Vet. App. 370 (2002). The CUE claim was adjudicated by the RO in September 2016. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Revision of a prior decision on the basis of CUE can only be based on a final decision by a RO or the Board. See Richardson v. Nicholson, 20 Vet. App. 64, 70 - 71 (2006); see also Norris v. West, 12 Vet. App. 413, 422 (1999)(holding that where there is no final RO decision, there can be no CUE). Where an RO decision is appealed directly to the Board, it does not become final. See 38 U.S.C.A. § 7105(c). This issue of entitlement to service connection for tinnitus is currently before the Board, following a timely notice of disagreement and substantive appeal of the May 2015 rating decision. Hence, the May 2015 rating decision has not become final, and the claim remains pending and is currently before the Board. Therefore, there can be no CUE claim as there is no final decision. In fact, in May v. Nicholson, the Court of Appeals for Veterans Claims (Court) stated that, although it may appear on first blush that a valid CUE claim has been filed, a CUE claim "cannot lie as to a decision that is still open to direct review." 19 Vet. App. 310, 317 (2005). In reaching this determination, the Court reasoned that a collateral attack or CUE motion made prior to a determination becoming final bypasses the avenue of direct appeal, resulting in the Veteran being "handicapped by the heightened burdens of proof and pleading that are characteristic of a collateral CUE attack." Id. As such, the Court held that a CUE claim cannot be filed as to a matter that is still appealable or pending. Id. at 320. Accordingly, because a CUE claim cannot be based on a non-final decision, there remain no allegations of errors of fact or law for appellate consideration regarding CUE in the RO's May 2015 rating decision. See id.; see also 38 U.S.C.A. § 7105(c). Therefore, the Board does not have jurisdiction to review the purported appeal for CUE in the May 2015 rating decision, and thus, this appeal must be dismissed for lack of legal merit. 38 U.S.C.A. § 7105(d)(5); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Relevant Laws and Regulations The Veteran contends his in-service exposure to extremely high levels of noise as an aircraft mechanic caused his tinnitus. See January 2016 Notice of Disagreement. Service connection is granted for disability resulting from disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a)(2016). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166 - 67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a). For certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 213). Organic diseases of the nervous system include sensorineural hearing loss and tinnitus. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection for chronic diseases may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. IV. Tinnitus The Veteran is competent to describe the nature and extent of his in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 - 70 (1994). The evidence shows that the Veteran has a current diagnosis for tinnitus, thereby satisfying the first element for service connection. The Veteran's DD 214 confirms that he was an aircraft mechanic. The Duty MOS Noise Exposure Listing referenced in VA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus show that individuals with a duty MOS of Tactical Aircraft Maintenance and Aircraft Structural Maintenance have a high probability of exposure to hazardous noise in service. Additionally, the Veteran has described exposure to aircraft engines and his accounts of his duties in service and exposure to these noises are consistent with the circumstances, conditions, and hardships of his service, and are, therefore credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the Veteran had in-service noise exposure satisfying the second element of service connection. At issue is whether the Veteran's tinnitus is etiologically related to his in-service noise exposure. Lay evidence may be competent to establish medical etiology or nexus; such is the case for tinnitus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board finds that the Veteran is competent to describe his tinnitus and that it started in service. The service treatment records (STRs) are silent for complaints of or treatment for symptoms consistent with tinnitus. The private treatment reports are silent for complaints of or treatment for symptoms consistent with a diagnosis of tinnitus until the June 2014 VA examination. Further, the Veteran denied tinnitus in a September 2013 audiology note, but endorsed ringing in the ears in October 2015. See September 2013 audiology note, October 2015 emergency department note. In a June 2014 VA examination, the Veteran reported bilateral intermittent tinnitus since 1965 - during service. The examiner presumed that the Veteran's tinnitus was started or aggravated in service. However, this opinion is inadequate because the examiner did not review the Veteran's claims file or STRs. In a July 2014, an examiner provided an addendum opinion to the June 2014 VA examination and found that it was less likely than not that the Veteran's tinnitus was related to active duty service. The examiner rendered her opinion after review of the claims file, including the June 2014 VA examination. Following a May 2015 review of the record and an in-person examination, the examiner found it was less likely than not that the Veteran's tinnitus was related to his military noise exposure. The Veteran reported bilateral constant tinnitus since the mid to late 1970's. The Board finds that the evidence is in relative equipoise as to the Veteran's tinnitus beginning in service. Accordingly, the evidence regarding service connection for tinnitus is also in relative equipoise. Thus, the benefit of the doubt doctrine is for application and service connection for tinnitus is warranted. ORDER The appeal regarding revision of the May 2015 rating decision on the basis of CUE is dismissed. Entitlement to service connection for tinnitus is granted. REMAND The Veteran's military personnel records show that he had active service from April 1962 to January 1966 and from January 1968 to January 1970. It appears that the June 2014 and May 2015 examiners did not consider the Veteran's second period of service as they did not discuss the Veteran's December 1969 separation examination. Further, the July 2014 VA opinion expressly notes only the Veteran's first period of service. Therefore, the Board finds that all three VA opinions are based on the inaccurate factual premise that the Veteran only served from April 1962 to January 1966. Hence, a new VA medical opinion is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new audiological examination to determine the nature and etiology of his bilateral hearing loss. The examiner must consider the Veteran's second period of service (January 1968 to January 1970) before addressing whether it is at least as likely as not that the Veteran's bilateral hearing loss is due to his active service. The examiner must be provided access to the claimant's VBMS and Virtual VA files. The examiner must complete the appropriate disability benefits questionnaire worksheet for bronchial asthma, and conduct a pulmonary function study. The results of any and all studies must be explained. A complete rationale must be provided for any opinion offered. 2. After the requested development has been completed, the RO should review the record to ensure that it is in complete compliance with the directives of this remand. If the development is deficient in any manner, the RO must implement corrective procedures at once. 3. Thereafter, readjudicate the issue of entitlement bilateral hearing loss. If any benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs