Citation Nr: A21020076 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 201210-124250 DATE: December 16, 2021 ORDER The severance of service connection for a hearing loss disability was improper; restoration of service connection for a hearing loss disability is granted. The severance of service connection for tinnitus was improper; restoration of service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability to include post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The grant of service connection for a hearing loss disability pursuant to a March 2005 rating decision, was not clearly and unmistakably erroneous. 2. The grant of service connection for tinnitus pursuant to a March 2005 rating decision, was not clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of service connection for a hearing loss disability was improper; the criteria for restoration of service connection for a hearing loss disability are met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 2. The severance of service connection for tinnitus was improper; the criteria for restoration of service connection for tinnitus are met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the Air Force Reserves, with a period of active duty for training (ACDUTRA) from July 1986 to December 1986. The Veteran had reserve component service until May 1994. The case is on appeal to the Board of Veterans' Appeals (Board) from a November 2020 rating decision by the Agency of Original Jurisdiction (AOJ). As this rating decision constitutes an initial decision, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. This matter has a long and complex history and was first adjudicated under the legacy system. By way of background summary, entitlement to service connection for a bilateral hearing loss disability and tinnitus were granted in a March 2005 rating decision, effective July 29, 2004. In the November 2009 and January 2012 rating decisions, the Veteran's service-connected hearing loss and tinnitus disabilities were severed effective from February 1, 2010. The Veteran did not file a substantive appeal to the decisions under the legacy system, and so, the decisions became final. In a March 2008 rating decision, the AOJ denied the Veteran's service connection claim for PTSD, among other claims. The Veteran did not substantively file an appeal to the March 2008 decision under the legacy system, and the decision became final. In January 2015, the Veteran sought to reopen the previously denied service connection claims for PTSD and restoration of service connection for hearing loss and tinnitus. In an April 2015 rating decision, the Veteran's claim to reopen the service connection claims for PTSD, hearing loss, and tinnitus, among other claims, were denied because it was determined that the evidence submitted was not new and material. Subsequently, the Veteran appealed the issues directly to the Board of Veterans' Appeals (Board) under the AMA appeal system. In February 2020 decision, the Board determined that the Veteran is not entitled to a TDIU. The Board further noted that it lacked jurisdiction to decide the PTSD, hearing loss and tinnitus claims but advised the Veteran to file a Supplemental Claim. In March 2020, the Veteran filed a VA Form 20-0995 Supplemental Claim Application to readjudicate his claim for service connection for PTSD, hearing loss and tinnitus. A November 2020 rating decision readjudicated the Veteran's PTSD, hearing loss and tinnitus claims, finding that new and relevant evidence was received; however, service connection was denied for all claims. In the November 2020 rating decision, the AOJ made several favorable findings. First, that the evidence shows that a qualifying event, injury, or disease had its onset during the Veteran's service. Second, that the Veteran has a history of head injury and has been diagnosed of PTSD, general anxiety disorder, and adjustment reaction. Third, that the Veteran's exposure to hazardous noise as an aircraft maintenance specialist is highly probable; that he has been diagnosed with hearing loss and tinnitus; and that the claimed disabilities are chronic diseases which may be presumptively linked to the Veteran's military service. The Board is bound by these favorable findings. See 38C.F.R. §3.104. Additionally, the Board finds that the AOJ made an implicit finding that new and relevant evidence had been received to readjudicate the claims of service connection in its November 2020 rating decision, as the AOJ addressed the merits of the Veteran's claim. This is a favorable finding by the AOJ, and the Board will proceed to the address the claims on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). In the December 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal (i.e., November 2020). 38 C.F.R. § 20.301. The Board notes the December 2020 VA Form 10182 listed TDIU as an appealed issue. The Board finds this issue is not on appeal, as the February 2020 Board decision finally adjudicated the issue of whether TDIU is warranted. Board decisions are final when issued unless reconsideration has been ordered or upon review by the Court of Appeals for Veterans Claims (Court). 38 C.F.R. § 20.1100(a). Furthermore, the Board has advanced the case on the docket pursuant to 38 C.F.R. § 20.800(c). 1. Whether the severance of service connection for pes planus was proper 2. Whether the severance of service connection for pes planus 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 of the contemplated severance at his or her latest address of record 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). 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 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 evidence that postdate the original award of service connection to demonstrate that the basis 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 based on CUE is revised to conform to the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62. First, the Board must determine whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The AOJ originally granted service connection for hearing loss and tinnitus in a March 2005 rating decision. In a January 2007 rating decision, the AOJ proposed to sever service connection for hearing loss and tinnitus. The AOJ noted that service treatment records showed a left ear hearing loss prior to entrance into the military. The AOJ explained that the Veteran's reported incidence of falling approximately 3 feet in service, as related to his current hearing loss and tinnitus disabilities, is not substantiated in the service medical records. In the November 2009 and January 2012 rating decisions, the AOJ severed service connection for hearing loss and tinnitus. Thus, the AOJ concluded that the decision to grant service connection for hearing loss and tinnitus was clearly and unmistakably erroneous. The AOJ followed the proper due process steps for severing service connection. The AOJ issued the proposed rating decision in January 2007, 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 January 2007 notice letter also informed the Veteran that he had the opportunity for a hearing if requested within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran requested a predetermination hearing which was schedule in November 2009, but the Veteran was a no show. The AOJ issued the November 2009 and January 2012 rating decisions, which severed service connection for hearing loss and tinnitus, prospectively effective February 1, 2010. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in January 2012. Thus, all due process requirements were met in the severance of service connection for hearing loss and tinnitus. See 38 C.F.R. § 3.105(d). Having met the due process requirements, the remaining question before the Board is whether the grant of service connection for hearing loss and tinnitus 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). On this review, the Board finds the severance of service connection was improper because there is no clear and unmistakable evidence, as the term is understood in law, and that the Veteran had a hearing loss condition that pre-existed service. In relevant part, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C. § 1111. The April 1986 enlistment examination documents that the Veteran had no significant defects. Furthermore, the Veteran's physical profile was completely normal and was deemed qualified for active duty service. Thus, the Veteran is presumed sound at entrance. Service connection requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) competent evidence of a disease contracted, or an injury suffered; and (3) medical evidence of a nexus between current symptomatology and the claimed in-service event. 38 C.F.R. § 3.304. As noted previously, in March 2005 the Veteran was granted service connection for hearing loss rated as non-compensable, and tinnitus rate at 10 percent, respectively. The March 2005 rating decision relied upon a December 2004 VA medical opinion that provided a positive nexus to service. That examination included specific consideration of in-service events reported by the Veteran. The examiner opined that it is at least as likely as not that the onset of the hearing loss and tinnitus are related to the Veteran's experience while in service. See March 2004 VA Examination. Although the specific in-service 3 feet fall incident (as reported by the Veteran) had not been verified, pursuant to the examiner's findings, in June 2017, the Board found that the Veteran's statements regarding the ACDUTRA injury and symptoms associated with the injury were credible. The Board further noted that the Veteran's numerous statements, made in the course of treatment to his treating physicians and to medical professionals have great probative value. This is because statements made to physicians for purposes of diagnosis and treatment is exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown,10 Vet. App. 67, 73 (1997). The Board stated that these statements to the various medical providers have been consistent. See June 2017 BVA Decision. Therefore, the Veteran's in-service injury is impliedly conceded. In light of the foregoing, the Board finds that the nexus opinion in the December 2004 VA examination report renders the Board unable to state that the rating decision granting service connection was clearly and unmistakably erroneous. See Stallworth, Id. The Board cannot state that the March 2005 grant of service connection was the kind of error that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. Id. While, as noted above, the severance of service connection was based on the notion of a pre-existing hearing loss condition and the lack of medical documentation of the in-service fall incidence in the Veteran's service treatment records, the Board finds that the grant of service connection for hearing loss and tinnitus was not "clearly erroneous", and thus severance of service connection for these disabilities, effective February 1, 2010, was improper. In sum, the evidence of record does not clearly and unmistakably establish that the hearing loss disability and tinnitus are not related to service (i.e., the grant of service connection was improper). Reasonable minds could disagree as to the ultimate determination. However, the 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. Accordingly, the severance of service connection for a hearing loss disability and tinnitus was improper and restoration is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability to include post-traumatic stress disorder (PTSD) is remanded. The Veteran contends that he is entitled to service connection for PTSD as a result of an in-service fall incident. The Board has recharacterized his claim as a claim for entitlement to service connection for an acquired psychiatric disorder, including but not limited to PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran also argues that his PTSD may be secondary to his tinnitus See March 2007 VA 21-0781, Statement in Support of Claim for PTSD. Under the AMA, the Board must remand to the AOJ to correct pre-decisional duty to assist errors (including when the AOJ failed to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failed to obtain a VA examination, or provided an inadequate VA examination or opinion). 38 C.F.R. § 20.802(a). The records indicate that the Veteran was scheduled for an examination with the Bay Pines VAMC. Prior to the scheduled exam date, the Veteran cancelled, stating that he was barely recuperating from the COVID-19 virus infection, and that the AOJ should instead use the sixteen (16) years of VA and private medical treatment records on his file to readjudicate the claims. The Board observes that no medical nexus opinion was obtained regarding the claimed condition. At this juncture, the Board finds that remand is warranted to cure a pre-decisional duty-to-assist error, notably the AOJ failed to obtain a medical opinion as to the etiology of the Veteran's variously diagnosed psychiatric disabilities. The matters are REMANDED for the following action: 1. The AOJ should schedule the Veteran for the appropriate VA examination to determine the etiology of the Veteran's psychiatric disabilities. Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible. If a telehealth interview is not feasible, obtain a medical opinion. The VA examiner must address the Veteran's relevant lay assertions, and if necessary, address whether the Veteran's lay assertions are consistent or inconsistent with the medical history and data. The examiner must respond to the following inquires: (a) Identify all current psychiatric disabilities the Veteran has, to include PTSD, among any others diagnosed in the record. (b) If the Veteran has been diagnosed with PTSD, the examiner must opine whether it is at least as likely as not (50 percent probability or higher) that that there is a link, established by medical evidence, between the current PTSD symptoms and an in-service stressor. The examiner must clearly identify any stressor. Specifically, the VA examiner should address the Veteran's contention that his in-service fall and head injury led to a psychiatric disability, to include PTSD. (c) For all psychiatric disorders other than PTSD, the examiner must opine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's diagnosed psychiatric disorder is related to his military service. (d). For all psychiatric disorders including PTSD, the examiner must opine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's diagnosed psychiatric disorder is caused or aggravated by any service connected disability. The examiner should provide a detailed rationale for any opinion, including a discussion of the evidence of record and medical principles which led to the conclusions reached. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.