Citation Nr: 18140166 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 10-31 527 DATE: October 2, 2018 ORDER As the April 23, 1986 Department of Veterans Affairs (VA) Reginal Office (RO) rating decision contained clear and unmistakable error (CUE) in the denial of service connection for tinnitus, the April 23, 1986 rating decision is revised to reflect a grant of service connection for tinnitus, effective October 12, 1985. The appeal on the issue of an effective date prior to April 22, 2005 for the grant of service connection for tinnitus is dismissed. FINDINGS OF FACT 1. An April 23, 1986 RO rating decision denying service connection for tinnitus was not based on the law and evidence then of record, and did not constitute a reasonable exercise of rating judgment; but for the factual and legal error, the outcome would have been manifestly different, namely, service connection for tinnitus would have been assigned from October 12, 1985, the day after separation from service. 2. The earliest effective date having been assigned at law for service connection for tinnitus based upon revision of an April 23, 1986 RO rating decision due to CUE, there is no question of law or fact for the Board to decide concerning the issue of an effective date prior to April 22, 2005 for the grant of service connection for tinnitus. CONCLUSIONS OF LAW 1. The April 23, 1986 RO rating decision denying service connection for tinnitus was clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 2. The issue of an effective date prior to April 22, 2005 for the grant of service connection for tinnitus has been rendered moot by the grant of service connection for tinnitus from October 12, 1985 due to CUE, the earliest effective date available at law, leaving no question of fact or law to be decided by the Board. 38 U.S.C. §§ 7104 (a), 7105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1981 to October 1985. This matter came before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of the RO in St. Petersburg, Florida. The issues on appeal were previously before the Board in November 2012 and December 2016, where they were remanded for additional development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the instant decision finds CUE in an April 23, 1986 RO rating decision denying service connection for tinnitus and revises the decision to grant service connection from October 12, 1985, the day after separation from service, which is a complete grant as to the issues on appeal, the Board need not address Stegall compliance at this time. The Veteran testified from Muskogee, Oklahoma, at a June 2012 Board videoconference hearing before a Veterans Law Judge (VLJ). The hearing transcript has been associated with the record. The undersigned VLJ is not the VLJ who presided over the June 2012 hearing. In a letter dated August 2016, the Veteran was advised of the right to have another hearing before a new VLJ, as the previous VLJ was no longer with the Board. In a subsequent August 2016 letter, the Veteran waived the right to have a new hearing before the Board. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the instant decision constitutes a complete grant as to the issues on appeal, no further discussion of VA’s duties to notify and assist is necessary. 1. Effective Date Prior to April 22, 2005 for Service Connection for Tinnitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As will be discussed below, the Board finds CUE in an April 23, 1986 RO rating decision denying service connection for tinnitus, and revises the decision to reflect a grant of service connection for tinnitus from October 12, 1985, which is the day after the Veteran’s separation from service. As this is the earliest effective date available at law, there is no question of law or fact for the Board to decide concerning the issue of an effective date prior to April 22, 2005 for the grant of service connection for tinnitus; therefore, the appeal for an effective date prior to April 22, 2005 for the grant of service connection for tinnitus must be dismissed. 2. CUE in April 23, 1986 Rating Decision Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 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. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (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 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 Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, 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, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). In the present case, the Veteran alleges CUE in a prior April 23, 1986 rating decision that denied service connection for tinnitus. The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now. First, 38 C.F.R. § 3.303(a) provided then, as now, that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a) (1986). Second, under 38 U.S.C. § 5107 (1982), a veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Third, 38 C.F.R. § 3.102 (1989), both then and now, states that when a reasonable doubt arises due to an approximate balance of positive and negative evidence, such doubt shall be resolved in favor of a veteran. Further, the regulation also stated that every veteran was in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, or enrollment, or where clear and unmistakable evidence (obvious or manifest) demonstrated that the injury or disease existed before acceptance and was not aggravated by such service. 38 U.S.C. § 311 (1991). A preexisting injury was considered to have been aggravated by active service where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 353 (1982) (now 38 U.S.C. § 1153). The applicable statute, 38 U.S.C. § 311 (now 38 U.S.C. § 1111), was implemented by 38 C.F.R. § 3.304(b) (1986), which provided that: The veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) that the presumption of soundness under 38 U.S.C. § 1111 is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any preexisting conditions were not aggravated by service. While the decision in Wagner did not exist when the April 23, 1986 rating decision was issued, the Wagner decision, as explained by the Federal Circuit, was a statement of what the statute creating the presumption of soundness has meant since its enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction”). The Federal Circuit has held that its interpretation of section 1111 in the Wagner opinion was retroactive in that the interpretation of a statute explains “what the statute has meant since the date of enactment.” Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). As a result, the Federal Circuit found that a 1986 Board decision which failed to apply the clear and unmistakable evidence standard to the issue of aggravation was not in accordance with the law. See id. Simply stated, as found by the Federal Circuit, the Wagner case was a clarification of what the statute had always meant. In sum, when no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. If that burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness, the claim is one for direct service connection. Wagner, 370 F.3d 1089. At the outset, the Board notes that the April 23, 1986, rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Next, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). While not artfully stated, in reviewing the pleadings and the representative’s testimony at the June 2012 Board videoconference hearing, the Board finds the Veteran’s and representative’s CUE argument to be as follows. In an October 2006 decision, the Board awarded service connection for tinnitus after finding that there was not clear and unmistakable evidence under 38 U.S.C. § 1111that the Veteran’s tinnitus was not aggravated by active service. The contention is that, had the RO at the time of the April 23, 1986 rating decision properly applied 38 U.S.C. § 1111, the outcome of the rating decision would have been manifestly different, as service connection for tinnitus would have been granted at that time. The Board agrees. Review of the service treatment records reflects that the service entrance examination in September 1981 was normal, showing no diagnosis of tinnitus, which means the presumption of soundness was implicated. In March 1982, the veteran sought treatment for ringing in the ears. An April 1983 service treatment record shows that a diagnosis of tinnitus. Subsequent service treatment records reflect that the Veteran continued to complain of, and seek treatment for, tinnitus during service. Per a June 1982 service treatment record, the Veteran reported having tinnitus since age 11, well before service; however, the Veteran complained that the symptoms had worsened since entering service. The Veteran received a tinnitus examination in December 1985. Per the examination report, the examiner noted that the Veteran served around electronic noises while in service (per the Veteran’s DD 214 the Veteran worked in electronic warfare during service). At the conclusion of the examination, the diagnosis was “constant tinnitus bilaterally for the past three to four years.” On the question of whether there was clear and unmistakable evidence that the claimed condition existed prior to service to overcome the first prong of Wagner, the service treatment records reflect that it was not clear and unmistakable that preexisting tinnitus was not aggravated by service. Wagner, 370 F.3d 1089. “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17, Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). In this regard, the Board observes that the service treatment records, particularly the June 1982 treatment record, showed some evidence of aggravation or worsening of the tinnitus during service while working around noisy electrical equipment; therefore, it follows that the presumption of soundness could not have been rebutted in April 1986, based on application of the correct law to the evidence of record at that time. For the above reasons, the Board finds that it cannot be legally said that a finding of no aggravation could have been undebatable in April 1986. Cotant, 17 Vet. App. at 131. At the very least, the evidence brings into question whether there was aggravation of preexisting tinnitus during service. In this regard, the Board now turns to whether the result would have been manifestly different but for the error. On this issue, because there was no clear and unmistakable evidence in April 1986 that tinnitus both preexisted service and was not aggravated thereby, the presumption of soundness was not rebutted, and the claim should have then been considered on a direct basis. See 38 U.S.C. § 311; Wagner, 370 F.3d at 1094 96. In this regard, if the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2013) (citing Horn v. Shinseki, 25 Vet. App. 231, 236 (2012)). For service connection, a claimant still must establish that he has a current disability that is related to the in-service injury or disease. Gilbert, 26 Vet. App. at 52. An unrebutted presumption of soundness does not necessarily lead to service connection for the disease or injury because it still must be shown by the claimant that there is a nexus between the current disability and service. Id. at 52. The Board finds that, without the error of law in the April 23, 1986 RO rating decision, the presumption of soundness would not have been rebutted. Moreover, the claim for service connection for tinnitus would have been granted on a direct basis. This conclusion is undebatable, as reasonable minds could not differ on it. As discussed above, during service the Veteran sought treatment for tinnitus, and was diagnosed with tinnitus on multiple occasions. The report from a December 1985 tinnitus examination indicated that tinnitus was related to exposure to loud electrical sounds while working in electronic warfare during service. The evidence of record reflects that the RO committed legal error in the April 23, 1986 rating decision when it failed to find that the presumption of soundness had not been rebutted. It is undebatable that, had the RO not made this legal error, the outcome of the rating decision would have been manifestly different, as service connection for tinnitus would have been granted. Specifically, the medical evidence of record at that time showed that the Veteran was diagnosed with tinnitus during service. The Veteran immediately applied for service connection for tinnitus upon separation from service. The report from a December 1985 tinnitus examination diagnosed tinnitus and implied that the tinnitus symptoms were related to exposure to loud electrical noises during service. Had the RO properly applied the presumption of soundness and decided the issue of service connection for tinnitus on a direct basis, reasonable doubt would have been resolved in favor of the Veteran to find service connection for tinnitus warranted on a direct basis. For these reasons, the Board concludes that the RO committed clear and unmistakable error in the April 23, 1986 rating decision denying service connection for tinnitus. As the Veteran’s December 1985 claim for service connection for tinnitus was received within one year of separation from service, the April 23, 1986 RO rating decision will be revised to reflect a grant of service connection for tinnitus, effective October 12, 1985, the day after separation from service. 38 C.F.R. § 3.400 (2017). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel