Citation Nr: 20009728 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-31 387 DATE: February 6, 2020 ORDER Severance of service for bilateral hearing loss was improper; restoration of service connection for bilateral hearing loss is granted. FINDING OF FACT The grant of service connection for bilateral hearing loss, pursuant to a December 2016 rating decision, was not clearly and unmistakably erroneous. CONCLUSION OF LAW The severance of service connection for bilateral hearing loss was improper; the criteria for restoration of service connection for bilateral hearing loss have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to July 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by the RO. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Whether the severance of service connection for bilateral hearing loss was proper Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105 (a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary’s burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62. The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The RO originally granted service connection for bilateral hearing loss in a December 2016 rating decision. In a January 2017 rating decision, the RO proposed to sever service connection for bilateral hearing loss. The RO concluded that service connection for bilateral hearing loss was granted erroneously. The RO explained that the grant of service connection was based on service treatment records (STRs) which showed hearing loss in service by a puretone threshold shift in service which had been linked to in-service noise exposure. However, the RO noted that the VA audiologist provided a negative opinion for hearing loss supported by rationale which noted the normal puretone thresholds in service as a basis for the negative opinion. The RO stated that the STRs did not show disabling loss of hearing during service or within the presumptive period and reported that the other evidence of record did not demonstrate a link between service and the hearing loss. The RO concluded that the decision to grant service connection for bilateral hearing loss was clearly and unmistakably erroneous. In the August 2018 rating decision, the RO severed service connection for bilateral hearing loss. The RO reiterated the January 2017 rating decision that had proposed to sever service connection for bilateral hearing loss. The RO concluded that severance was proper. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in January 2017, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The notice letter also informed the Veteran that he had the opportunity for a hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The RO issued the August 2018 rating decision, which severed service connection prospectively effective November 1, 2018. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in August 2018. The November 1, 2018, date was greater than the last day of the month in which a 60-day period from the date of the August 2018 notice expired. Thus, all due process requirements were met in the severance of service connection for bilateral hearing loss. See 38 C.F.R. § 3.105(d). Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for bilateral hearing loss was clearly and unmistakably erroneous. Regarding the characteristics of clear and unmistakable evidence, the word ‘unmistakable’ means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster’s New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). The Board concludes that the severance of service connection was improper because there is no clear and unmistakable evidence, as the term is understood in law, that the Veteran’s bilateral hearing loss did not have onset due to acoustic trauma sustained during the Veteran’s period of service. Weighing against the claim, the December 2016 Report of VA hearing loss and tinnitus examination documents the diagnosis of bilateral sensorineural hearing loss. The audiologist opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner explained that according to an in-service audiological exam, puretone thresholds were within normal limits. However, in offering an opinion as to the etiology of the Veteran’s tinnitus, the audiologist concluded that the Veteran’s tinnitus was a symptom of the hearing loss. The audiologist opined that it was at least as likely as not caused by or a result of military noise exposure. The audiologist explained that although the Veteran’s military occupational specialty (MOS) had a low probability of hazardous noise exposure, he was exposed to hazardous noise. As a radio operator, he was always nearby a flight line and the headset produced constant static. The Veteran could hear the aircraft taking off, through the headset, which basically amplified the noise. He participated in weapons qualification, annually, with no hearing protection. The opinion regarding the etiologically relationship between current bilateral hearing loss and service (bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service because puretone thresholds in service were within normal limits) is compelling but is not clear and unmistakable evidence establishing that the grant of service connection was improper. Notwithstanding the inadequate rationale provided in the 2016 VA examination report, the audiologist, in offering an opinion as to the etiology of tinnitus explained that tinnitus was a symptom of hearing loss that had onset from hazardous in-service noise exposure. In the December 2016 rating decision, the RO considered the service treatment records, post-service treatment records and the findings and opinion documented in the December 2016 VA examination report. After reviewing all this evidence, the RO granted service connection for bilateral hearing loss. As noted, in the January 2017 rating decision proposing to sever service connection, the RO found the decision to grant service connection for bilateral hearing loss was clearly and unmistakably erroneous because in the December 2016 report of VA examination, the audiologist had opined that bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. The RO concluded that service connection had been granted erroneously because the STRs did not show disabling loss of hearing during service or within the presumptive period and the other evidence of record did not demonstrate a link between service and the hearing loss; therefore, there was no basis to support entitlement to service connection. However, the Board reiterates that in the December 2016 rating decision granting service connection, the RO considered the findings and opinions documented in the December 2016 VA examination report. This is not a claim of service connection to be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the preponderance of the evidence would be against the claim. In this matter, the standard to be employed is whether there is “clear and unmistakable evidence” of an error. The RO’s determination here amounts to no more than a disagreement as to how to weigh the facts. In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. (Continued on the next page)   Accordingly, the severance of service connection for bilateral hearing loss was improper and restoration is warranted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.