Citation Nr: 21065598 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-35 147 DATE: October 26, 2021 ORDER The severance of service connection being improper, service connection for hearing loss, left ear, is restored, and the appeal is granted. The severance of service connection being improper, service connection for tinnitus is restored, and the appeal is granted. FINDINGS OF FACT 1. There is not clear and unmistakable evidence that the Veteran's hearing loss, left ear, is not related to acoustic trauma during service. 2. There is not clear and unmistakable evidence that the Veteran's tinnitus was not incurred in service or is not secondary to hearing loss, left ear. CONCLUSIONS OF LAW 1. The severance of service connection for hearing loss, left ear, was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 2. The severance of service connection for tinnitus was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to April 1973. The case is on appeal from a September 2018 rating decision, which severed service connection for hearing loss, left ear, and tinnitus. The Veteran appealed that rating decision by filing a notice of disagreement (NOD) in December 2018. The October 2019 statement of the case (SOC) on appeal phrased the issue as entitlement to service connection for hearing loss, left ear, and tinnitus, rather than whether the severance of service connection was proper. This was the incorrect issue, as the Veteran had appealed the severance issue. An SOC has not otherwise been issued on the severance issue. The Board finds that there is no prejudice to the Veteran in proceeding to a decision at present, since the outcome of this appeal is fully favorable. See Archbold v. Brown, 9 Vet. App. 124, 132 (1996). Severance of Service Connection 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. See id. 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. Id. 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 (internal quotations omitted). Due Process 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 Board finds that the RO followed the proper due process steps for severing service connection. First, the RO issued a proposed rating in July 2017. The Veteran was notified in August 2017 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 August 2017 notice letter also informed the Veteran that he had the opportunity for a predetermination 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 Veteran filed a statement later in August 2017 indicating that he did not desire a hearing and did "not wish to dispute the decision to sever my service connection for hearing loss and tinnitus proposed by VA." He requested that "VA proceed with the decision to sever my service connection for hearing loss and tinnitus." Accordingly, the RO issued the September 2018 rating decision, which severed service connection prospectively effective January 1, 2019. Notice of this rating decision, plus his appeal rights, was sent to the Veteran under a October 2018 cover letter. The January 1, 2019 date was greater than the last day of the month in which a 60-day period from the date of the October 2018 notice expired. Thus, all due process requirements were met in severance service connection. See 38 C.F.R. § 3.105(d). Because a predetermination hearing was not requested, the final action will be based solely upon the evidence of record. 38 C.F.R. § 3.105(i)(2). Discussion 1. Whether the severance of service connection for hearing loss, left ear, was proper. As a threshold issue, there is no material dispute that the Veteran has a hearing loss disability for VA purposes. His hearing acuity most recently at an April 2017 VA examination was as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 30 45 70 65 Speech recognition scores were 96 percent left ear. Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies, a hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. It is also not in material dispute that the Veteran had acoustic trauma in service. He maintains that he had noise exposure during combat operations in the Republic of Vietnam during the Vietnam War. His service personnel records (SPRs) confirm service in Vietnam from August 1970 to August 1971. His DD 214 further confirms such service and shows that he was an Armor Crewman and was awarded the Combat Infantry Badge. As such, the Veteran's account of acoustic trauma during combat operations is established. 38 U.S.C. § 1154(b). The only question in dispute is whether the Veteran's hearing loss is related to the in-service acoustic trauma. To address this question, the Veteran underwent two VA examinations. The same VA examiner conducted both examinations. The same VA examiner gave a clarifying addendum opinion in June 2017. The Veteran was first examined in December 2014. The VA examiner opined that the condition was less likely than not related to service. The VA examiner reasoned that the enlistment examination showed normal hearing as did the separation examination, and there was no evidence of a threshold shift during the intervening time. In April 2017, the same VA examiner examined the Veteran, but opined that the hearing loss, left hear, was at least as likely as not related to service. The VA examiner reasoned that there was normal hearing at enlistment and normal hearing at separation with no evidence of a threshold shift. The examiner further explained that there was not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. The examiner noted that, although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The examiner explained that, based on the objective evidence (i.e., the separation audiogram), one may conclude that the instant Veteran's current hearing loss would have been more than likely attributed to events that happened after service separation. The examiner pointed to occupational noise exposure including working at a machine shop for 2 years without hearing protection; and recreational noise exposure reportedly restricted to using power tools without hearing protection. In the June 2017 clarification addendum, the VA examiner opined that the hearing loss, left ear, was less likely than not related to or caused by military noise exposure. The examiner gave the same rationale given in April 2017. At this stage, it is clear that the VA examiner's April 2017 opinion contained a typographical error. The examiner gave an unequivocally positive opinion, but an unmistakably negative rationale. The rationale was entirely consistent with the same VA examiner's negative opinion in December 2014. This is not a situation where there are dueling opinions of equally probative weight. This is a situation where the VA examiner gave an internally inconsistent opinion. The RO clearly erred in granting service connection where the positive opinion was contradicted by the negative rationale, which clearly demonstrated that the examiner intended to give a negative opinion. This is akin to administrative error on the RO's part in not seeking clarification from the examiner prior to granting service connection. However, the Board must look to the totality of the evidence to determine if the grant of service connection is clear and unmistakable error. To this end, the VA examiner's opinions are not the only probative evidence. The Veteran himself has stated that his hearing loss began with his service in Vietnam. Specifically, he underwent a VA Agent Orange Registry examination in June 1984. At that time, he reported decreased hearing since Vietnam. Again in December 1984, he reported ringing in his ears and impaired hearing that he thought had developed after his service in Vietnam. The Board can find no reason to discount the veracity of these statements. It is true that they were made in the context of a VA Agent Orange Registry examination, but he had not, and did not, file a claim of service connection for hearing loss proximate in time to that claim. Hence, there is no indication that he was attempting to give inaccurate information for purposes of secondary gain. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Otherwise, there is no clear and unmistakable evidence contradicting the Veteran's account of hearing loss since service. There is, for example, no contemporaneous, intervening evidence showing that he affirmatively denied such symptoms after service and prior to the June 1984 VA Agent Orange Registry examination. Hence, his statements from 1984 are some evidence in support of a nexus. See, e.g., Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015). The VA examiner did not address this lay evidence, further undermining the probative weight of the examiner's opinions. In short, there is both positive evidence supporting a nexus and negative evidence against a nexus. This evidence presents a reasonable disagreement as to such, and reasonable minds could disagree as to the ultimate determination. However, this determination, at this point, amounts to no more than a disagreement as to how to weigh the facts. In 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. Accordingly, the severance of service connection was improper and restoration of service connection is warranted. 2. Whether the severance of service connection for tinnitus was proper. The question for the Board is whether the severance of service connection for tinnitus was proper. Service connection for tinnitus was granted as secondary to hearing loss, left ear. This was the opinion of the VA examiner in April 2017. The Board herein restores service connection for hearing loss, left ear. There is not clear and unmistakable evidence establishing that his tinnitus is not secondary to hearing loss, left ear. In fact, the Veteran himself in December 1984 reported ringing in his ears since Vietnam, which is some evidence of a direct nexus to service. On this basis, the grant of service connection for tinnitus was not clear and unmistakable error and restoration of service connection is warranted. See 38 C.F.R. §§ 3.105(d), 3.310. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.