Citation Nr: 21012883 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 20-30 709 DATE: March 5, 2021 ORDER The motion for reversal or revision of an April 1, 2020 Board of Veterans’ Appeals (Board) decision that denied service connection for bilateral hearing loss on the basis of clear and unmistakable error (CUE) is denied. FINDING OF FACT In April 2020, the correct facts, as they were known at the time, were before the Board, and the statutory and regulatory provisions extant at the time were correctly applied; and, there is no showing of any error in this regard that, but for the error, would have manifestly changed the outcome of the decision on the claim. CONCLUSION OF LAW The April 1, 2020 Board decision that denied service connection for bilateral hearing loss does not contain CUE. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-20.1406. REASONS AND BASES FOR FINDING AND CONCLUSION The moving party (Veteran) served on active duty from August 1965 to May 1967. This matter comes before the Board as an original action from a September 2020 motion by the Veteran to revise or reverse, on the basis of clear and unmistakable error in an April 2020 Board decision. The Board’s denial is no longer appealable to the Court, as more than 120-days has passed since the issuance of the Board decision and reconsideration was not sought. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100; see Gates v. Nicholson, 19 Vet. App. 376 (2005); May v. Nicholson, 19 Vet. App. 310, 320 (2005). As such, the Board’s April 1, 2020 decision is final and may be collaterally attacked on the basis of CUE. A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. 38 C.F.R. § 20.1404(b). Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Id. Motions that fail to comply with these requirements shall be dismissed without prejudice to re-filing. Id.; see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. Clear and unmistakable error 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. 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). Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. 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. In the April 2020 decision, the Board denied entitlement to service connection for bilateral hearing loss. In denying the claim, the Board considered a November 2017 VA examination report in which the examiner found that the Veteran’s hearing loss was less likely than not caused by or a result of his military service, as the Veteran’s hearing tested within normal limits at the time of his induction and discharge. The examiner noted a review of the Veteran’s audiograms from service treatment records (STRs) that showed no significant threshold shifts in each ear on separation, which the examiner explained showed that his in-service noise exposure did not have a detrimental effect on his hearing sensitivity. The Board also relied on an April 2018 addendum opinion that was provided by the same examiner, in which she noted that thresholds were the same at entrance and exit exams, showing there was no standard threshold shift in either ear. Although 3000 Hz was not tested, she explained that since there was no shift at adjacent frequencies, it is highly unlikely that there would be a shift just at 3000 Hz. She stated that she did not find any reports of hearing problems in the Veteran’s STRs. She explained that a review of the Veteran’s audiograms from service treatment records showed no significant threshold shifts in each ear on separation showing that his service-connected noise exposure did not have a detrimental effect on his hearing sensitivity. The examiner also explained, in respect to delayed onset of hearing loss, “There is 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. 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[,]” quoting The Health and Medicine Division (HMD) of the National Academies of Sciences, Engineering, and Medicine. The examiner stated that her opinion is based off medical records found in the Veteran’s STRs. The Board also considered the fact that the Veteran testified at the January 2020 hearing that he first noticed his hearing loss in approximately 1990, when his wife brought it to his attention, however, he first sought treatment for his hearing loss in approximately 2014 when she told him to go to the VA for hearing loss issues. The Board explained that this lengthy period without treatment is evidence that the Veteran has not experienced continuous symptoms, and it weighs against the claim, citing Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, the Board noted that the Veteran testified that he had substantial occupational noise exposure after service. Therefore, in weighing the evidence, the Board concluded that it is unlikely that he had continuous hearing loss symptoms since service, and that his current hearing loss is not causally related to his service. The statutes and regulations concerning service connection provide that service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss, which is an organic disease of the nervous system, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a) In the September 2020 motion, the Veteran, through his representative, contends that the April 2020 Board’s reliance on the November 2017 VA opinion and April 2018 addendum opinions amounts to clear and mistakable error. Specifically, the Veteran stated that the April 2018 addendum opinion’s reliance on the HMD study that “in respect of delayed onset of hearing loss, ‘[t]here is 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. 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 Health and Medicine Division (HMD) of the National Academies of Sciences, Engineering, and Medicine).’” The Veteran contends that in McCray v. Wilkie, 31 Vet. App. 243 (2019), the U.S. Court of Appeals for Veterans Claims (Court) specifically addressed the HMD study and that the Court found “‘that the Board simply cannot accept the use and acceptance of conflicting and contradictory medical opinions based in part off conflicting test. [The Board] simply cannot state that it is adequate because there is an audiological opinion with it when the medical text clearly conflicts with the opinion.’” The Veteran added, quoting McCray: [T]he Board’s dependence on a negative VA medical opinion that relied on a medical text containing unfavorable findings as well as apparently contradictory findings regarding delayed-onset hearing loss. The Court holds that a medical text’s qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text. Because the Board erred in failing to assess the impact of apparently qualifying or contradictory statements in the medical text on the probative value and adequacy of the negative VA medical opinion, the Court will set aside the June 2017 Board decision as to [the Veteran’s] left ear hearing loss and remand the matter for additional development, if necessary, and readjudication consistent with this decision. As to his claimed right ear hearing loss, the Court will likewise set aside the June 2017 Board decision and remand that matter for the Board to comply with its statutory reasons or bases obligation. (quoting id. at 249.) He further contends that the Board’s reasoning that the November 2017 and April 2018 addendum opinion to be the most probative evidence of record as to whether the Veteran’s hearing loss is related to his active service is exactly what the Court concluded the Board cannot do. As a threshold matter, the Board finds that the arguments advanced by the Veteran and his representative allege CUE with the requisite specificity. Thus, meeting the filing and pleading requirements of 38 C.F.R. §§ 20.1400(a), 20.1404(a), (b). The Veteran essentially contends that the Board relied on an inadequate medical opinion in denying the claim for service connection for bilateral hearing loss disability. However, an asserted breach of the duty to assist based on an inadequate medical examination cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002) (citing Caffrey v. Brown, 6 Vet. App. 377 (1994) (holding that a CUE claim is an attack on a prior judgment that asserts an incorrect application of law or fact, and that an incomplete record, factually correct in all other respects, is not CUE). 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. Here, in contrast to the current case, McCray did not involve a motion of CUE in a Board decision, but rather involved the Board’s denial of service connection for bilateral hearing loss on appeal, thus the duty to assist and notify under the Veterans Claims Assistance Act of 2000 (VCAA) was applicable in McCray. See Livesay v. Principi, 15 Vet. App. 165, 179 (U.S. 2001) (explaining that “there is nothing in the text or the legislative history of VCAA to indicate that VA’s duties to assist and notify are now, for the first time, applicable to CUE motions.”). However, even if the Board were to accept the argument that the opinions were, in fact, inadequate, the Veteran has not offered any arguments that but for VA’s alleged failure to provide such an adequate opinion, the result would have been “manifestly different,” which is essential for a successful allegation of CUE. Fugo, 6 Vet. App. at 44. Here, the VA examiner did not rely solely on the HMD study, but also considered the Veteran STRs and audiograms from service treatment records that showed no significant threshold shifts in each ear on separation. In the April 2018 addendum opinion, the examiner specifically considered the fact that the thresholds were the same at entrance and exit exams. The Board also relied on the Veteran’s lack of credibility based on his lay statement that he noticed his hearing loss in approximately 1990 when his wife brought it to his attention, but he first sought treatment for his hearing loss in approximately 2014. The Board pointed out that the lengthy period without treatment is evidence that the Veteran has not experienced continuous symptoms, and it weighed against the claim. The Board also noted the Veteran experienced substantial occupational noise exposure after service. Thus, the Board, in denying the claim, and the VA examiner, in providing negative nexus opinions, did not solely consider the HMD study at issue. In addition, to the extent that the Veteran argues that the Board’s conclusion that the November 2017 and April 2018 VA addendums were most probative of the record was also clear and unmistakable error, the Board finds that the Veteran’s argument constitutes a disagreement with the weight that the Board assigned to the evidence, which is not a valid CUE claim. See Caffrey supra; Russell, supra. Thus, an alleged duty to assist error cannot constitute CUE, nonetheless, the Veteran cannot demonstrate that had he received an adequate opinion, the outcome would have been different. See Fugo, supra; see also Cook, supra (to establish CUE, it is incumbent on the veteran to establish entitlement to benefits as of the date of the claim being challenged as CUE); Bustos v. West, 179 F.3d at 1381, cert. denied, 528 U.S. 967, 145 L. Ed. 2d 315, 120 S. Ct. 405 (1999) (a veteran “must show that an outcome-determinative error occurred”). Therefore, the Veteran has not demonstrated that either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied at the time of the April 1, 2020 Board decision, which denied service connection for bilateral hearing loss. The Veteran has also not identified an error that would have resulted in a manifest change in the outcome; an error that is not debatable, such that reasonable minds could only conclude that the original decision was fatally flawed. Livesay, supra. Accordingly, the motion to revise or reverse the Board’s April 1, 2020 decision denying service connection for bilateral hearing loss on the grounds of CUE is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.