Citation Nr: 21025237 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-05 803 DATE: April 27, 2021 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a right ear hearing loss has been received, the application to reopen is granted. Entitlement to revision of a May 1999 rating decision on the basis of clear and unmistakable error (CUE) is granted, and the May 1999 rating decision is revised to reflect an award of a separate, 10 percent rating for cholesteatoma of the left ear, effective November 15, 1997. REMANDED An initial compensable disability rating for left ear hearing loss is remanded. Service connection for right ear hearing loss is remanded. The application to reopen the claim for service connection for bone loss of the skull is remanded. Service connection for a disability manifested by vertigo, including Meniere’s disease, is remanded. FINDINGS OF FACT 1. In a March 2012 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) declined to reopen a claim for service connection for right ear hearing loss. There was no new and material evidence pertinent to the claim received within one year of the issuance of the decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 2. The evidence pertaining to right ear hearing loss received after the March 2012 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. The statutory and regulatory provisions extant at the time of the May 1999 rating decision that denied a separate rating for cholesteatoma were incorrectly applied to the record as it existed then, resulting in an undebatable error, the sort which, had it not been made, would have manifestly changed the outcome of the decision. CONCLUSIONS OF LAW 1. The March 2012 rating decision declining to reopen the claim for service connection for right ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.1103. 2. Evidence received since the March 2012 rating decision is new and material, and the claim for service connection for a right ear hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to establish CUE in the RO's May 1999 decision that denied a separate rating for cholesteatoma have been met. 38 U.S.C. §§ 5109A, 7105(c); 38 C.F.R. §§ 3.104, 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1993 to November 1997 in the United States Marine Corps This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision. In February 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. In characterizing the claim involving vertigo, the Board considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), which provides that a claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence. The RO last denied service connection for vertigo in a March 2012 final rating decision. Since then, private medical records from 2014 show a diagnosis of Meniere’s disease. As the record reveals that the Meniere’s disease diagnosis was not present when the claim was previously denied, the Board finds that the current claim may be considered without regard to whether new and material evidence has been received. 1. As new and material evidence sufficient to reopen the previously denied claim for service connection for a right ear hearing loss has been received, the application to reopen is granted. VA provides disability compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a rating decision of July 2011, the RO denied service connection for right ear hearing loss. The evidence consisted of statements from the Veteran, his service treatment records (STRs), and VA examination reports. The RO denied the claim due to a lack of evidence showing that right ear hearing loss was incurred in or linked to service or a service-connected disability. In a rating decision of March 2012, the RO declined to open the claim for service connection. The evidence consisted of statements from the Veteran, his STRs, VA examination reports, and private medical records. The RO continued the previous denial of the claim. There was no material evidence received within one year of the issuance of the March 2012 rating decision. The Veteran was notified of the decision and of his appellate rights but did not appeal. The March 2012 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. On VA examination for cholesteatoma in February 2014, the examiner noted that the Veteran’s hearing impairment and/or tinnitus was a residual of his service-connected cholesteatoma. This evidence is “new” in that it was not before the RO in March 2012, and is not duplicative or cumulative of evidence previously of record. This evidence is also “material” as it lends support to an element of the Veteran’s claim for service connection, that of a nexus between hearing loss and a service-connected disability. When viewed in the context of the reason for the prior denial, the added evidence cures a prior evidentiary defect. Accordingly, the criteria for reopening the claim are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Entitlement to revision of a May 1999 rating decision on the basis of CUE is granted, and the May 1999 rating decision is revised to reflect an award of a separate, 10 percent rating for cholesteatoma of the left ear, effective November 15, 1997. In November 1998, the Veteran filed a claim for service connection for a disability of the left ear as related to in-service surgeries performed on the ear. In January 1999, VA examinations were conducted to assess both the Veteran’s hearing acuity as well as diseases of the ear. In the latter examination, the examiner noted a history of two surgeries of the left ear performed during service. In 1996, he was diagnosed with a cholesteatoma and underwent a tympanomastoidectomy. In 1997, more cholesteatoma was discovered, involving the ossicles, and he underwent a second surgery to remove the cholesteatoma disease. On examination, the examiner noted an intact canal wall tympanomastoidectomy with severe retraction. There was an underlying mesh appearance in the typo tympanum. In the attic, there were two fairly large cholesteatoma pearls. In May 1999, the RO issued a rating decision granting service connection for cholesteatoma of the left ear, status-post tympanomastoidectomy, conductive hearing loss, and tinnitus. He was assigned a single, noncompensable rating for these disabilities together, effective November 15, 1997, the day following separation from service as his claim was filed within one year of discharge. His disability was rated under the diagnostic code pertaining to hearing loss, Diagnostic Code 6100. A higher rating was denied due to the level of the Veteran’s hearing acuity. The Veteran was notified of the rating decision and was provided with notice of his appellate rights, but he did not initiate an appeal. There was no new and material evidence pertinent to the claim received within one year of the issuance of the decision. The Veteran now seeks to vitiate the finality of the May 1999 rating decision via CUE. At the February 2021 hearing, he testified that CUE occurred when the RO failed to assign him a rating for his cholesteatoma separate from that assigned for his hearing loss. The Board cannot consider the matter of RO CUE issue in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326 (2006). Here however, in the February 2014 rating decision on appeal, the RO adjudicated the matter of whether the RO’s failure to award a separate rating for cholesteatoma of the left ear in May 1999 constituted CUE. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Judicial precedent has consistently stressed the rigorous nature of the concept of CUE. “Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has further stated that a CUE is a very specific and a 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. Thus, 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 clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. at 313 (en banc). An assertion of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating 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. §§ 3.104(a); 3.400(k). Initially, the Board has considered the fact that effective June 10, 1999, the regulations pertaining to diseases of the ear were amended. Under the revision, Diagnostic Code 6200 was amended to provide a 10 percent rating for cholesteatoma during suppuration or with aural polyps. The code also specifically provided that hearing impairment was to be rated separately. See 64 FR 25202, 25209, (May 11, 1999). However, as this revision was not effective until after the issuance of the May 1999 rating decision, it cannot be used to support the claim as it did not reflect the law in existence in May 1999. Moreover, the revision cannot be retroactively applied. 38 U.S.C. § 5110(g) (1999). However, the rating schedule that existed at the time of the May 1999 decision provided a rating for benign growths of the ear, other than of the skin only, pursuant to Diagnostic Code 6209. 38 C.F.R. § 4.87a (1998). Diagnostic Code 6209 provided a minimum 10 rating of 10 percent, and specified that the growths were to be rated based on impairment of function. The law at the time also provided that that the evaluation of the same disability under various diagnoses, known as pyramiding, was to be avoided. 38 C.F.R. § 4.14 (1998). In this regard, the Board looks to the symptomatology of the conditions; if the symptomatology of one condition is duplicative of or overlapping with the other condition, awarding separate ratings would constitute pyramiding. Benign growths of the ear, not merely affecting the skin, were clearly documented on VA examination in January 1999. They were described by the examiner as “two fairly large cholesteatoma pearls.” Other manifestations of the Veteran’s recurrent cholesteatoma included severe retraction of the canal wall, and a mesh appearance in the typo tympanum. Symptoms of the Veteran’s left ear hearing loss, on the other hand, consisted of decreased hearing acuity, including when localizing sound and understanding speech. The Board finds this symptomatology to be separate and distinct from the structural abnormalities and large growths present in the ear due to cholesteatoma. As such, based on the record and the law that existed at the time of the May 1999 rating decision, a separate, 10 percent rating for cholesteatoma was warranted pursuant to Diagnostic Code 6209, effective November 15, 1997. The preponderance of the evidence is against rating in excess of 10 percent, however, as neither the January 1999 VA examination reports nor the Veteran’s statements made at the time indicate an impairment of functioning due to the cholesteatoma. In short, the RO incorrectly applied the statutory provisions at the time when it rated the disability based only on hearing loss, despite the fact that the rating schedule provided distinct diagnostic codes for hearing loss and benign growths of the ear. But for this error, a manifestly different outcome would have resulted. The Board thus finds CUE in the May 1999 rating decision with regard to the RO’s failure to award a separate, 10 percent rating for cholesteatoma. REASONS FOR REMAND 1. An initial compensable disability rating for left ear hearing loss is remanded. An updated VA examination is needed for the claim for an initial compensable rating for left ear hearing loss. The Veteran last underwent a VA audiological examination in 2015. At the February 2021 hearing, he testified that his hearing acuity has worsened significantly since 2015. Specifically, he stated that he is now unable to hear out of the left ear at all. He testified that he cannot hear conversations, a horn blasting, or any noise at all through the ear, and that he has learned to read lips as a result. An updated examination assessing the current severity of the disability should be provided. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. The application to reopen the claim for service connection for bone loss of the skull is remanded. In a rating decision of July 2011, service connection for bone loss of the skull was denied due to the lack of evidence of a current disability. The denial was continued in a March 2012 final rating decision. In February 2014, a VA examination was conducted, and an x-ray of the skull was taken. While no abnormality was identified on x-ray, the examiner noted that an assessment of the middle ear and mastoid process was limited by the x-ray, and indicated that a computerized tomography (CT) temporal bone scan would provide more accurate findings. The Board finds that this diagnostic test should thus be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Service connection for right ear hearing loss is remanded. 4. Service connection for a disability manifested by vertigo, including Meniere’s disease, is remanded. As discussed, VA examinations assessing both the Veteran’s hearing acuity and any structural abnormalities surrounding the ear must be provided for the above claims. Those examinations reports may contain findings as to whether the Veteran has right ear hearing loss for VA purposes and the etiology of any hearing loss, as well as findings regarding current vertigo or Meniere’s disease. As the examination reports could significantly impact a decision on the claims for right ear hearing loss and a disability manifested by vertigo, the claims are inextricably intertwined. The matters are REMANDED for the following action: Afford the Veteran a VA audiological, ENT, or other appropriate examination(s). If the appointed examiner is not qualified to make the determinations sought, the remand must be sent to a qualified examiner. A complete explanation should be provided for all opinions rendered. The examiner must respond to the following inquiries: (a.) Ascertain the current severity of the Veteran’s left ear hearing loss in accordance with the applicable worksheet for rating the disability. Determine whether the Veteran has right ear hearing loss for VA purposes. (b.) Determine whether the Veteran has any current bone loss of the skull, to include by conducting a CT temporal bone scan, as discussed by the February 2014 VA examiner. (c.) Opine on whether it is at least as likely as not that any current right ear hearing loss, bone loss of the skull, or disability manifested by vertigo (including Meniere’s disease) began during any period of active service or is related to an in-service injury, event, or disease, to include the Veteran’s otitis media, cholesteatoma, and ear surgeries performed in service. (d.) Opine on whether it is at least as likely as not that any current right ear hearing loss, bone loss of the skull, or disability manifested by vertigo (including Meniere’s disease) have been (i.) caused, or (iii.) aggravated (i.e., worsened) by his service connected cholesteatoma, left ear hearing loss, or any service-connected disability. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.