Citation Nr: 21062712 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 12-01 719 DATE: October 12, 2021 ORDER The motion to reverse on the basis of clear and unmistakable error (CUE) the June 1991 Regional Office (RO) rating decision that denied service connection for hearing loss is granted, and service connection for bilateral hearing loss is awarded effective March 18, 1991. REMANDED Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is remanded. FINDING OF FACT The June 1991 rating decision that denied entitlement to service connection for hearing loss contained clear and unmistakable error which compels the conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. CONCLUSION OF LAW The criteria for assignment of an earlier effective date of March 18, 1991, for the award of service connection for bilateral hearing loss on the grounds of clear and unmistakable error (CUE) in a June 1991 rating decision have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.105 (a), 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1951 to January 1953. He died in March 2011 and the appellant is his surviving spouse. This appeal has a lengthy procedural history which has been detailed in prior Board decisions. Most recently, in May 2019, the Board determined that there was no CUE in a June 1991 rating decision and also denied entitlement to DIC benefits under 38 U.S.C. § 1318. The appellant subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court vacated the Board's May 2019 decision and remanded the case for readjudication in compliance with directives specified in its memorandum decision. The motion to reverse on the basis of CUE the RO's June 1991 rating decision that denied service connection for hearing loss The appellant seeks an earlier effective date for the award of service connection for the Veteran's bilateral hearing loss. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the appellant's claim is warranted. Previous determinations on which an action was predicated, including decisions regarding increased evaluations, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative 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). 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 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. See, e.g., Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions then in extant at the time were incorrectly applied; and (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); see, e.g., Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. A failure in the duty to assist does not establish CUE. A purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" to vitiate the finality of a prior, final decision. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Facts and Analysis The Veteran's initial claim seeking service connection for hearing loss was received on March 18, 1991. In it, the Veteran maintained that the onset of hearing loss occurred in service in 1952. In the June 1991 rating decision, the RO denied the claim because there was no documented evidence of either a complaint or finding of hearing loss in service "or within a reasonable period following separation from service." The Veteran was notified of the June 1991 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the June 1991 decision became final. At the time of the June 1991 rating decision, the law provided that service connection was warranted if the facts, shown by evidence, established that a particular injury or disease resulting in disability was incurred coincident with service. 38 C.F.R. § 3.303 (a) (1991). Determinations as to service connection would be based on review of the entire evidence of record, with due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. Id. The evidence of record at the time of the June 1991 rating decision included the Veteran's service treatment records, a "Report of Separation from the Armed Forces of the United States" form (DD Form 214), a March 1991 "Veteran's Application for Compensation or Pension" form (VA Form 21-526), VA treatment records, private treatment records and an April 1991 letter from Dr. G, and an April 1991 letter from the Veteran. This evidence reflects that the Veteran's military occupational specialty was a cannoneer and that he received the Korean Service Medal, two Bronze Service Stars, and a UN Service Medal. The evidence also documents his reports of exposure to loud noise in service associated with artillery in Korea and his reports of hearing loss in the years since such exposure. The appellant has argued that the RO's failure to apply the provisions of 38 U.S.C. § 1154 (b) (West 2002) (formerly 38 U.S.C. § 354 (b) (1991)) amounted to CUE in the June 1991 rating decision. The appellant's argument that the VA should have conceded the Veteran's combat status was the subject of the most recent January 2021 memorandum decision. However, the appellant has also made arguments in the August 2015 Notice of Disagreement that revision of the June 1991 rating decision was warranted because the RO incorrectly applied the statutory and regulatory provisions in effect at the time in essentially concluding that an April 1991 positive opinion from a private medical examiner, Dr. G., was conclusory and therefore inadequate to decide the claim. The appellant cited to caselaw supporting the proposition that "VA may not simply disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran." See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (citing to Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (stating Board must evaluate the credibility and weight of the history upon which medical opinion is predicated)). At the time of the June 1991 rating decision, there was medical evidence clearly establishing that the Veteran was diagnosed with bilateral hearing loss. Also of record were military personnel records reflecting the Veteran served during the Korean War and worked as a cannoneer, a specialty which carried a high probability of hazardous noise exposure. On this basis, there is a qualifying injury or disease that had its onset during the Veteran's active duty service. Hazardous noise exposure during his active service is consistent with the circumstances of the Veteran's duties. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (1991). At the time of the June 1991 rating decision, the Veteran also had reported the onset of his hearing loss as during service. The Board notes that the Veteran is competent to report symptoms and observations of his hearing both during and since active service because this requires only personal knowledge as it comes through one's senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Finally, of record at the time of the June 1991 rating decision was an April 1991 opinion from a private examiner, Dr. G, who stated that the Veteran's bilateral hearing loss "has been present ever since he was exposed to artill[e]ry firing in the Korean War." Neither the appellant nor her representative has identified any specific evidence in the record that was not considered by the RO in its June 1991 decision. However, the Board finds that the regulatory provisions requiring the RO to base its decision on a review of the entire evidence of record at that time specifically, 38 C.F.R. § 3.303 (a) (1991) was not correctly applied. The RO failed to consider positive medical evidence linking the Veteran's hearing loss to his in-service acoustic trauma, evidence which was supported by the Veteran's own statements attesting to problems with his hearing since active service. At the time of the June 1991 rating decision, there was no medical evidence contradicting the positive conclusion reached in the April 1991 private examiner's opinion. The failure to correctly apply the laws and regulations was error. The Board also finds that the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Here, there is no question that had the RO properly considered the April 1991 private examiner's opinion in light of the Veteran's statements made at the time of his application for benefits as well as military personnel records indicating the Veteran worked in a military occupational specialty with a high probability of acoustic trauma, then it would have necessarily found that service connection for bilateral hearing loss was warranted. Absent this legal error, the RO would have assigned an effective date of March 18, 1991, for the award of service connection. As a result, the Board concludes that entitlement to revision of the June 1991 rating decision on the basis of CUE to reflect the grant of service connection for hearing loss effective March 18, 1991, that is, the date of the Veteran's service connection claim, is warranted. REASONS FOR REMAND Entitlement to DIC benefits under 38 U.S.C. § 1318 is remanded. As the appellant's motion to revise the June 1991 rating decision has been granted, remand of the DIC claim is needed pending the RO's implementation of the new effective date of the award of service connection for bilateral hearing loss and establishment of updated disability ratings. The matters are REMANDED for the following action: 1. Implement the Board's grant of a new effective date for the award of service connection for bilateral hearing loss from March 18, 1991. 2. In light of the new effective date above, the RO must readjudicate the appellant's claim seeking entitlement to DIC benefits under 38 U.S.C. § 1318. M. E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.