Citation Nr: 21000613 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 19-01 863 DATE: January 5, 2021 ORDER The motion for revision or reversal of the December 2010 rating decision that denied service connection for bilateral hearing loss on the basis of clear and unmistakable error (CUE) is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. In a final rating decision issued in December 2010, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss. 2. The December 2010 rating decision was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome of the matter at issue. 3. Evidence added to the record since the final December 2010 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss.   CONCLUSIONS OF LAW 1. The December 2010 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 2. The criteria for revision or reversal of the December 2010 decision that denied service connection for bilateral hearing loss on the basis of CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 3. New and material evidence has not been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to February 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 30 days for the receipt of additional evidence; however, none has been received to date. 1. Whether the December 2010 rating decision that denied service connection for bilateral hearing loss should be reversed or revised on the basis of CUE. By way of background, VA received the Veteran’s original claim for service connection for bilateral hearing loss in July 2010. In a December 2010 rating decision, the AOJ considered the Veteran’s service treatment records (STRs) (which, per VA Form 21-3101, were received in September 2010), separation documents, copies of service personnel records (SPRs) submitted by the Veteran, post-service VA treatment records, a May 2010 letter from audiologist D.V., and a December 2010 VA examination. The AOJ acknowledged that, while the Veteran’s STRs were negative for any report or care for hearing complaints, he was exposed to acoustic trauma or noise during his military service. Further, the AOJ also found that, while the Veteran had a current diagnosis of bilateral hearing loss as defined by VA regulations, the probative December 2010 VA opinion found that such was unrelated to his in-service noise exposure. In reaching such determination, the AOJ acknowledged D.V.’s May 2010 opinion that discussed the nature of the Veteran’s in-service noise exposure and found that his hearing loss is service-connected based on his report of being provided with binaural hearing aids at a VA facility in 2004. However, the AOJ found that such did not establish a definitive relationship between the Veteran’s current hearing loss and his military service. Therefore, as there was no nexus between his bilateral hearing loss and his military service, or evidence that such manifested to a compensable degree within one year of his release from service, the AOJ denied service connection for such disorder. In December 2010, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, the December 2010 decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). In the instant case, the Veteran asserts CUE in the aforementioned December 2010 rating decision on the basis that the AOJ did not review the audiograms conducted upon his induction and separation from service. In this regard, he reports that his induction audiogram showed normal hearing bilaterally while his separation audiogram reflected deterioration in his hearing acuity in certain ranges. Thus, he claims that, had such in-service audiograms been considered, service connection for bilateral hearing loss would have been awarded in the December 2010 rating decision. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). At the time of the December 2010 rating decision, VA regulations provided that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As to the Veteran’s specific allegation in this case, i.e., the AOJ failed to review the audiograms conducted upon his induction and separation from service, which demonstrated a deterioration in his hearing bilaterally, in the December 2010 rating decision, the Board acknowledges that the AOJ did not specifically discuss such examinations. However, the AOJ did consider the Veteran’s STRs, which contain his March 1965 induction examination, which reflect 15 decibels at all tested frequencies, i.e., 500, 1000, 2000, and 4000 Hertz, bilaterally and his November 1966 separation examination, which reflect 0 decibels at 250, 500, 1000, 2000, 3000, 4000, 6000, and 8000 Hertz bilaterally with the exception of 15 decibels at 4000 Hertz and 25 decibels at 6000 Hertz in the left ear. Moreover, the AOJ considered the December 2010 VA examination report in which the examiner found that the Veteran’s STRs reflected that his hearing within normal limits upon entry and separation from service with no significant threshold shift. Thus, while the AOJ did not specifically discuss the audiometric findings at the Veteran’s induction and separation examinations, such facts were properly considered in the AOJ’s review of his STRs and December 2010 VA examination. Furthermore, there is no indication that had the specific audiometric findings documented at such examinations been explicitly discussed by the AOJ the outcome would have been manifestly different as such do not show an in-service diagnosis of right or left hearing loss as defined by VA regulations or otherwise show that his current bilateral hearing loss is related to his military service or manifested to a compensable degree within one year of separation. Thus, the Board finds that the Veteran’s argument is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator in the December 2010 rating decision. However, “[i]t is the prerogative of the factfinder... to interpret the evidence and draw reasonable inferences from it.” Evans v. McDonald, 27 Vet. App. 180, 185, 187 (2014) (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). Furthermore, a disagreement as to how the facts were weighed does not support a finding of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). To the extent that the Veteran implicitly asserted at the October 2020 Board hearing that the December 2010 VA examination was inadequate, such argument is tantamount to an allegation that VA failed in its duty to assist, which is insufficient to establish CUE. Livesay v. Principi, 15 Vet. App. 165 (2001). Specifically, a breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. Consequently, the Board finds that the December 2010 rating decision that denied service connection for bilateral hearing loss was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome of the matter at issue. Thus, revision or reversal of such rating decision on the basis of CUE is not warranted and the Veteran’s motion must be denied. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss. As noted previously, the Veteran’s claim for service connection for bilateral hearing loss was previously denied in a final rating decision issued in December 2010 on the basis of a lack of nexus to service, or evidence that such disorder manifested to a compensable degree within one year of separation from service. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the issuance of the December 2010 rating decision, updated VA treatment records have been received; however, such only reflect ongoing treatment for bilateral hearing loss, to include the prescription for hearing aids, a fact that was previously of record at the time of the prior decision. Similarly, while the Veteran has likewise provided additional statements regarding his in-service noise exposure and his belief that his current bilateral hearing loss is related to such exposure, such are duplicative of those he previously provided in connection with his July 2010 claim and were of record at the time of the December 2010 rating decision. Finally, in November 2018, a VA examiner opined that it was less likely than not that the Veteran’s currently diagnosed bilateral hearing loss is related to his acknowledged in-service noise exposure. Therefore, as the Veteran’s claim for service connection for bilateral hearing loss was previously denied based on the lack of a nexus to service, or evidence that such manifested to a compensable degree within one year of separation from service, and the newly received evidence likewise fails to address such missing element, the Board finds the evidence added to the record since the final December 2010 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claims for service connection for bilateral hearing loss. Consequently, as new and material evidence has not been received, his application to reopen such claim must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.