Citation Nr: 21023319 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 20-28 938 DATE: April 20, 2021 ORDER A June 26, 2020 Board of Veterans Appeals (Board) decision contained clear and unmistakable error (CUE) in awarding service connection for bilateral hearing loss. The Board’s September 10, 2020 motion for revision of the June 2020 decision on the basis of CUE is granted. FINDING OF FACT With respect to the Board’s June 2020 grant of service connection for bilateral hearing loss, although the correct facts—as they were known at that time—were before the Board, the statutory or regulatory provisions then extant were not correctly applied. But for this erroneous application of relevant of statutory or regulatory provisions, service connection for bilateral hearing loss would not have been granted. CONCLUSION OF LAW The June 26, 2020 Board decision, to the extent that it granted service connection for bilateral hearing loss, was clearly and unmistakably erroneous. The June 26, 2020 decision is revised to deny service connection for bilateral hearing loss. 38 U.S.C. § 7111; 38 C.F.R. §§ 3.400(b)(2), 20.1400, 20.1403, 20.1404, 20.1406, 20.1407. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1971 to September 1974, including service in the Republic of Vietnam. This matter is currently before the Board on its own motion for revision of a June 2020 Board decision on the grounds of CUE to the extent that the June 2020 decision awarded service connection for bilateral hearing loss. Board CUE A prior final Board decision must be revised or reversed where the evidence establishes CUE in that decision. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-1411. To warrant a finding of CUE, there must have been 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 results would have been manifestly different but for the error. 38 C.F.R. § 20.1403(a); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). The basis for this standard is that, “even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Additionally, a CUE motion must be based on the evidence and applicable law at the time of decision being challenged. 38 C.F.R. § 20.1403(a); Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir. 2001). 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 of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. Review to determine whether CUE exists in a final Board decision may be initiated by the Board on its own motion, or by a party to the decision. See id. In the instant case, the Board—on its own motion—contends that a June 2020 Board decision contained CUE in its grant of service connection for bilateral hearing loss. In the June 2020 decision, the Board found that the Veteran had a current disability of bilateral hearing loss based upon the results of a July 2014 VA audiological examination. Specifically, the June 2020 Board concluded that Veteran’s July 2014 speech discrimination scores of 94 percent in each ear qualified as bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. At the time of the June 2020 decision, 38 C.F.R. § 3.385 defined hearing impairment as a disability for VA purposes. Specifically, 38 C.F.R. § 3.385 provided that impaired hearing was to be considered a disability when evidence of one of the following circumstances was present: (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. In stating that the Veteran’s July 2014 speech recognition scores of 94 percent bilaterally satisfied the service-connection criterion of a current disability, the June 2020 Board erred as speech recognition scores must be less than 94 percent under 38 C.F.R. § 3.385. As the Veteran’s scores were only 94 percent, the Veteran’s word recognition score performance was not demonstrative of hearing impairment as defined by 38 C.F.R. § 3.385. Separate from the speech recognition scores, the July 2014 VA audiological examination also included the results of puretone threshold testing. However, as the Veteran did not display (1) auditory thresholds of 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; or (2) auditory thresholds of 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, the July 2014 VA examination in its entirety did not demonstrate that the Veteran had hearing loss as a current disability as defined in 38 C.F.R. § 3.385. Apart from the July 2014 audiological examination, the evidence of record from on or about the date of receipt of claim, April 8, 2013, to the issuance of the Board decision on June 26, 2020 did not contain any other audiological testing results. See 38 C.F.R. § 20.1403(b) (stating that, in evaluating a motion for CUE in a prior Board decision, review must be based on the record and law that existed when the decision was made). At the time of the June 2020 decision, establishing service connection generally required competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. 38 C.F.R. § 3.303(a). As the evidence of record at the time of the June 2020 decision did not indicate that the Veteran had a current disability—i.e., hearing impairment as defined by 38 C.F.R. § 3.385—the Board in June 2020 committed a legal error, of which reasonable minds could not differ, that the Veteran had a current disability for service connection purposes. As the result of the June 2020 decision would have been manifestly different but for that error, the Board finds that the June 2020 decision contained CUE. As such, the June 26, 2020 decision is revised resulting in the denial of service connection for bilateral hearing loss. 38 C.F.R. §§ 20.1400, 20.1402-1407. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.