Citation Nr: 1829914 Decision Date: 10/19/18 Archive Date: 10/30/18 DOCKET NO. 18-41 831 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a December 2016 Board decision that denied entitlement to service connection for bilateral hearing loss. REPRESENTATION Moving party represented by: Stacey Penn Clark, Attorney at Law ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel INTRODUCTION The moving party, the Veteran, originally appealed a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A December 2016 Board decision denied the Veteran's appeal seeking service connection for bilateral hearing loss. In April 2017, the moving party filed a motion with the Board for reconsideration of its December 2016 decision; in July 2017, the Board denied the motion for reconsideration. In July 2018, the moving party filed a motion with the Board to revise its December 2016 decision on the basis that it was clearly and unmistakably erroneous. FINDINGS OF FACT 1. A December 2016 Board decision denied the Veteran's claim of entitlement to service for bilateral hearing loss. 2. The record does not establish that any of the correct facts as they were known at the time were not before the Board in December 2016, or that the Board incorrectly applied statutory or regulatory provisions in effect at that time such that the outcome of the claim would have been manifestly different but for the error. CONCLUSION OF LAW The December 2016 Board decision, denying the Veteran's claim seeking service connection for bilateral hearing loss, was not clearly and unmistakably erroneous. 38 U.S.C. § 7111; 38 C.F.R. § 20.1403. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of CUE Governing authority that permits challenges to decisions of the Board on the grounds of CUE is found in 38 U.S.C. § 7111 and 38 C.F.R. § 20.1400-11. A final Board decision may be revised or reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C. §§ 5109A(a), 7111(a) and (c). CUE is defined as the kind of error, of fact or 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; generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). A review for CUE in a prior Board decision must be based on the record and the law as it existed when that decision was made. 38 C.F.R. § 20.1403(b). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). CUE does not include: a change in medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision (see 38 C.F.R. § 20.1304(d)(1); Porter v. Brown, 5 Vet. App. 233, 235-37 (1993)), VA's failure to fulfill the duty to assist (see 38 C.F.R. § 20.1403(d)(2); Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); and a disagreement as to how the facts were weighed or evaluated (see 38 C.F.R. § 20.1403(d)(3); Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994)). CUE also does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e); Jordan (Timothy) v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005). Further, the doctrine of the favorable resolution of reasonable doubt is not applicable in determinations of whether a prior Board decision contains CUE. 38 C.F.R. § 20.1411(a). As a threshold matter, a claimant must plead CUE with particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995). In other words, "broad-brush" allegations such as general assertions of a failure to follow the regulations, failure to give due process, failure to accord the benefit of the doubt, or failure to give reasons and bases do not qualify as CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Analysis A December 2016 Board decision denied the Veteran's appeal seeking service connection for bilateral hearing loss. In July 2018, after in July 2017 denying his motion for reconsideration of its decision, the Board received his motion to revise the decision on the basis that it was clearly and unmistakably erroneous. The Veteran's CUE motion sets forth two distinct issues for consideration: whether the Veteran's service personnel records (SPRs) are sufficient to prove CUE in the Board's December 2016 findings regarding his military occupational specialty (MOS) and exposure to firearms; and whether his SPRs are sufficient to prove CUE in the Board's December 2016 reliance on the VA examination of June 2014. As the Veteran's CUE motion merely notes for context, but does not reiterate for purposes of argument, assertions that were made in his earlier motion for reconsideration, the Board will limit its discussion on the specific allegations that were raised with the current motion. After a careful review of the record, the Board finds that its December 2016 decision that denied entitlement to service connection for bilateral hearing loss was not clearly and unmistakably erroneous. Specifically, the record does not establish that any of the correct facts as they were known at the time were not before the Board in December 2016, or that the Board incorrectly applied statutory or regulatory provisions in effect at that time such that the outcome of the claim would have been manifestly different but for the error. The Veteran through his attorney has advanced two issues for consideration, as articulated above, which focus upon the Veteran's SPRs. Enclosed with his CUE motion, received in July 2018, were additional SPRs obtained by the Veteran (and his attorney) from the National Personnel Records Center. He has cited to those records in support of his CUE motion, asserting that the Board's findings as to the Veteran's MOS (as a clerk) and exposure to firearms (characterized as limited) were incorrect in light of the newly obtained copies of SPRs that show the Veteran's assignment during 1962-63 as an indirect fire infantryman (with duties as a gunner). He asserted that the SPRs, which "were previously absent from the claims folder, are material and relevant as they directly contradict the Board's reasons and bases for discrediting the Veteran's allegations of in-service hearing loss." It was argued that these additional SPRs corroborate the Veteran's statement regarding his exposure to rifle fire and artillery and that his hearing loss was caused by such exposure without use of any protection. This allegation does not serve as a basis for CUE to revise or reverse the Board's December 2016 decision, because a review of a prior Board decision is based on the record as it existed at the time the decision was promulgated and not on additional, relevant and material records that were received after the decision was made. See 38 C.F.R. § 20.1403(b). Further, to the extent that there is any inference of a failure of VA's duty to assist by not obtaining the complete SPRs prior to adjudicating the hearing loss claim, such failure to secure records cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002). The moving party has also asserted that the Board's reliance on the June 2014 VA examination to deny the hearing loss claim was CUE because the examination was insufficient for various reasons. The Veteran through his attorney states that the VA examiner was not informed of the Veteran's MOS of 1962-63 (as shown in the additional SPRs received after the Board's decision), which is accepted by VA as having a "high probability of hazardous noise exposure." It was also alleged that the VA examiner failed to convert the results of the audiograms in service from ASA units into ISO/ANSI units, in accordance with the VA adjudication procedures manual provisions. As previously stated, any inference of a failure of VA's duty to assist, by not obtaining another VA examination prior to adjudicating the hearing loss claim, does not constitute a basis for CUE. See Cook, 318 F.3d at 1344-45. Nevertheless, in reviewing the VA examination report, there is no evidence to show that the examiner did not make the required conversions from ASA to ISO/ANSI units; the audiologist stated only that the Veteran's hearing was within normal limits at induction, separation, and during the in-between years as well. As shown in the Board decision of December 2016, which provided explanations and illustrations of the converted puretone thresholds during service (to a degree that was not provided by the examiner), the conclusion of the examiner that the Veteran had normal hearing acuity at the start of, during, and at the end of his period of service is correct, in accordance with the provision of 38 C.F.R. § 3.385 that defines hearing loss disability under VA law. Moreover, while not having been specifically informed of the probabilities of the Veteran's hazardous noise exposure in service, the VA examiner opined on the etiology of the Veteran's bilateral hearing loss disability after having considered his exposure to rifle firing and artillery in general without civilian noise exposure. Therefore, the VA examiner's findings are not shown to be unsupported by the available evidence. Even if the examiner had been informed more specifically of the Veteran's high probability for hazardous noise exposure during service, there is no evidence to indicate that the examiner's conclusion would have been manifestly different, and that the Board's decision of December 2016 in reliance of the VA medical opinion would likewise have been manifestly different. Thus, it has not been shown by the moving party that either the correct facts, as they were known at the time, were not before the Board, or that the Board incorrectly applied the statutory and regulatory provisions extant at the time. See 38 C.F.R. § 20.1403(a). In short, the Veteran through his two specific allegations has not shown how the Board's December 2016 conclusion, denying entitlement to service connection for bilateral hearing loss, is CUE. The Board reiterates that the standard for CUE requires that any such error compel the conclusion that reasonable minds could not differ, and that the result would have been manifestly different but for the error. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Here, the Veteran has not shown an undebatable error in the December 2016 Board decision, adjudicating the issue of service connection for bilateral hearing loss, which would manifestly change the outcome of the decision. Any disagreement with how the Board weighed and evaluated the facts on record in this regard, to include its reliance on the June 2014 VA examination and opinion, does not constitute CUE. The December 2016 Board decision was reasonably supported by the evidence of record before it at the time, including SPRs, and was consistent with the laws and regulations then in effect in addition to the case law and the statutory and regulatory provisions pertaining to CUE. Consequently, the motion for revision of that decision must be denied. ORDER As the Board's December 2016 decision, which denied the Veteran's claim seeking entitlement to service connection for bilateral hearing loss, was not clearly and unmistakably erroneous, the motion for revision or reversal of that decision is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs