Citation Nr: 20077046 Decision Date: 12/03/20 Archive Date: 12/03/20 DOCKET NO. 19-07 179 DATE: December 3, 2020 ORDER Entitlement to the revision of the October 2010 rating decision that denied service connection for head pressure (claimed as head pressure and headaches) on the basis of clear and unmistakable error (CUE) is granted. Entitlement to service connection for headaches secondary to tinnitus is granted. FINDINGS OF FACT 1. In June 2010, the Veteran filed an informal claim for tinnitus and right side head pressure and headache. 2. In a final October 2010 rating decision, the RO denied service connection for head pressure. The Veteran did not perfect an appeal of that rating decision, and did not submit new and material evidence within one year of its issuance. 3. The RO erred in denying service connection for head pressure (claimed as head pressure and headaches) in the October 2010 rating decision as it substituted its own medical finding in place of the only medical opinion of record, which was a positive August 2010 VA nexus opinion. 4. In this decision, the Board has found CUE in the October 2010 rating decision and the grant of service connection for headaches secondary to tinnitus is established; this is a full grant of the benefit sought by the Veteran. CONCLUSIONS OF LAW 1. The criteria for entitlement to the revision of the October 2010 rating decision that denied service connection for head pressure (claimed as head pressure and headaches) on the basis of clear and unmistakable error (CUE) have been met. 38 U.S.C. §§ 5109A (a), 7105 (2018); 38 C.F.R. §§ 3.102, 3.104 (b), 3.105(a), 3.400(k) (2020). 2. The criteria to establish service connection for headaches secondary to tinnitus, have been met. 38 U.S.C. §§ 1110, 1154, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Navy from February 2008 to May 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the February 2016 rating decision issued by a Department of Veterans Affairs (VA) denying entitlement to revision of the October 2010 rating decision denying service connection for head pressure. This matter was previously before the Board in August 2019. The Board denied the Veteran’s claim for entitlement to revision of the October 2010 rating decision denying service connection for head pressure (claimed as headaches) on the basis of clear and unmistakable error (CUE). See BVA Decision, August 2019. The Veteran appealed the August 2019 Board decision to the extent that it denied the Veteran’s motion revise the October 2010 rating decision based on CUE to CAVC and, through a May 2020 Joint Motion for Partial Remand, the August 2019 Board Decision was vacated, in part, and the claim was remanded for the Board to provide adequate reasons and bases for its findings. See CAVC Decision, May 2020. Clear and Unmistakable Error (CUE) Previous determinations that are final and binding, including denials of service connection, will be accepted by VA as correct in the absence of CUE. 38 C.F.R. § 3.105(a). CUE is a very specific and rare 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). 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, 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 collateral attack on an otherwise final rating decision by an RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). A mere misinterpretation of the facts does not constitute CUE. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Assertions that the previous adjudication at issue “improperly weighed and evaluated the evidence” does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). 1. Entitlement to the revision of the October 2010 rating decision that denied service connection for head pressure (claimed as head pressure and headaches) on the basis of clear and unmistakable error (CUE) The Veteran contends that the decision was based on an incorrect application of VA regulations to the fact that an August 2010 VA examiner found that his headaches were secondary to tinnitus (for which the AOJ granted service connection in the October 2010 rating decision). He argues that no other medical evidence at the time of the October 2010 rating decision was contrary to the August 2010 VA examiner’s clear, favorable secondary service connection findings; thus, the AOJ incorrectly applied 38 C.F.R. § 3.310(a), which manifestly changed the outcome of the claim. See Third Party Correspondence, June 2019; Fax Cover Sheet, October 2015. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131 (2002); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a) (2010). To obtain secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2010); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Veteran submitted an informal claim in June 2010 for service connection for ringing in the ears; and pressure and headaches on the right side of his head. See VA 21-4138, June 2010. In a July 2010 statement, the Veteran reported having frequent ringing in both ears and a big mass of pressure on the right side of his head above his ear that takes time to dissipate and seems to pulsate when it occurs. See VA 21-4138, July 2010. In August 2010, the Veteran was afforded a VA neurological disorders examination. The Veteran reported that his headaches started in 2009. See VA Examination, August 2010. The examiner indicated that the pressure and tinnitus were related to the headaches. Additionally, the Veteran reported that the headache attacks were frequent. The examiner diagnosed the Veteran with headaches secondary to tinnitus and noted that the condition occurred during service. An August 2010 VA examination for sleep walking report reflects that the Veteran reported that he hit his head on the roof of a bunk bed while in was in the military. See VA Examination, August 2010. Additionally, the Veteran reported that he fell and hit his head during a skateboard accident when he was 16. Id. The October 2010 rating decision granted service connection for tinnitus and denied service connection for head pressure. The RO stated that the service connection for tinnitus was granted because the evidence showed that the Veteran’s tinnitus was most likely caused by or a result of military noise exposure. The RO noted, “based on military records, exposure to hazardous noise while performing your military duties was highly probable. Based on these findings, we conceded inservice noise exposure for purposes of this benefit.” See Rating Decision-Narrative, October 2010. The RO stated that the available medical evidence did not establish a separate and chronic disability associated with the Veteran’s head pressure. Additionally, the RO stated that although the Veteran complained of an onset of head pressure in service associated with tinnitus, no permanent residual or separate chronic disability subject service connection is shown by the evidence of record. The Board finds that the rationale provided by the RO supports a finding against direct service connection. However, the Board finds that the RO committed CUE when it did not clearly apply 38 C.F.R. § 3.310 and address whether the credibly reported and acknowledged symptoms of head pressure were caused or aggravated by service-connected tinnitus. Of record at that time was an August 2010 VA examiner’s observations that head pressure and tinnitus “were related” and that a diagnosis was “Headaches secondary to tinnitus.” The RO acknowledged the existence of the examination report and these findings but also discussed the service and post service medical history. The RO as an adjudicator found shortcomings in the facts considered by the examiner. Specifically, that headaches or head pressure were not noted during service and were denied on a discharge physical examination, that these symptoms were reported as to have first manifested in November 2009 after service, and that the medical evidence did not establish a separate, chronic disability of headaches associated with head pressure. Although the RO noted the examiner’s statement of an association between tinnitus and head pressure and the diagnosis of headaches secondary to tinnitus, the RO did not place probative weight on the opinion. The RO as adjudicator may weigh evidence for credibility and probative weight. There was no improper medical determination by the RO. An objection to the weighing of evidence is not grounds for reversal or revision on the basis of CUE. Assertions that the previous adjudication at issue “improperly weighed and evaluated the evidence” does not satisfy the stringent legal requirements for CUE. However, the RO did not discuss the application of 38 C.F.R. § 3.310 as to secondary service connection, specifically whether a head pressure disorder was caused or aggravated by tinnitus. This was a theory raised by the record in the August 2010 examiner’s report and should have been considered. Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Therefore, as the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different, the Board finds that portion of the October 2010 rating decision that denied service connection for headaches and head pressure must be revised on the basis of CUE. 2. Entitlement to service connection for headaches secondary to tinnitus Referring to the facts of the case discussed above and applying the August 2010 examiner’s finding of “Headaches secondary to tinnitus” to the criteria of 38 C.F.R. § 3.310, the Board finds that service connection for headaches is warranted at least on the basis of aggravation. The Board considered all the evidence cited by the RO in October 2010 including the service treatment and post treatment records and history. The August 2010 examiner used imprecise terms in noted that headaches were “pressure/tinnitus related,” which does not indicate causation or aggravation and may only refer to co-morbidity. However, the examiner also noted as a diagnosis “Headaches secondary to tinnitus.” The examiner was not specific regarding causation or aggravation nor did the examiner provide any medical explanation. The examiner explicitly noted that headaches secondary to tinnitus did not occur during service and noted “N/A” in answer to the question of whether the worsening of headaches was due to military service. In several lay statements, the Veteran did not report his belief that his tinnitus caused or aggravated headaches. In August 2010, an audiologist evaluated the reports of tinnitus and made no mention of headaches. Even though the evidence is very thin, there are no contrary opinions or additional relevant evidence to consider. In July 2015, the RO declined to reopen the claim finding that no new and material evidence had been received relevant to the cause or aggravation of headaches by tinnitus. (continued next page) Therefore, the Board finds that there is at least a relative balance of evidence for and against the theory that tinnitus aggravated the Veteran’s headaches, and that service connection on a secondary basis is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.