Citation Nr: 21025489 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-02 556 DATE: April 28, 2021 ORDER Entitlement to an earlier effective date of service connection for bilateral hearing loss, on the basis of clear and unmistakable error (CUE) of a November 1979 Board of Veterans Appeals (Board) decision, is granted, and the decision is revised to reflect an award of service connection for bilateral hearing loss from December 5, 1978. Entitlement to an earlier effective date of service connection for tinnitus, on the basis of clear and unmistakable error (CUE) of a November 1979 Board decision, is granted, and the decision is revised to reflect an award of service connection for tinnitus from December 5, 1978. FINDING OF FACT With respect to the Board’s November 1979 denial of service connection for bilateral hearing loss with tinnitus, the statutory or regulatory provisions then extant in July 1979 were not correctly applied by the Board, and the failure to apply those laws and regulations manifestly changed the outcome of the Board’s decision. CONCLUSION OF LAW 1. The criteria for the assignment of an effective date of December 5, 1978, for the grant of service connection for bilateral hearing loss have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105(a), 38 C.F.R. § 3.400(b)(2)(i). 2. The criteria for the assignment of an effective date of December 5, 1978, for the grant of service connection for tinnitus have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105(a), 38 C.F.R. § 3.400(b)(2)(i). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1969. In February 2021, the appellant testified during a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Notably, in an April 2021 statement, the Veteran stated that it appears he was inadvertently scheduled for an additional hearing in June 2021, however, he requested cancellation of the scheduled hearing. Therefore, the Board will proceed and address the motion alleging CUE in the November 1979 Board decision. The Veteran (moving party), through his representative, has filed a CUE motion in May 2017 for revision or reversal of a November 1979 Board decision pursuant to 38 C.F.R. § 20.1400, which denied service connection for bilateral hearing loss with tinnitus. In essence, he contends that the Board misapplied the presumption of soundness established under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304(b) as in effect in November 1979, in finding that his bilateral hearing loss and tinnitus pre-existed service despite the absence of a diagnosis of bilateral hearing loss or tinnitus in his 1965 pre-induction examination. Further, he claims that the Board erred in concluding that the Veteran’s hearing problems recorded during service were merely acute and transitory manifestations of the chronic ear infections and did not reflect the onset of chronic defective hearing, as there was no evidence of the Veteran ever having chronic ear infections with bilateral hearing loss and tinnitus before or during service. The Veteran also contends that the Board ignored lay statements of record at the time of the November 1979 Board decision that he had not experienced any hearing problems prior to service and that his hearing problems began after his exposure to acoustic trauma by standing in close proximity to firearm shooting without protective ear gear. The Veteran reiterated his contentions during the February 2021 Board hearing. By way of background, the Veteran filed his initial claims for service connection for bilateral hearing loss and tinnitus on December 5, 1978, which the RO denied in a January 1979 rating decision. The Veteran perfected an appeal to the Board and the Board denied the claims for service connection for bilateral hearing loss with tinnitus in November 1979. The Veteran submitted an informal intent to file for applications to reopen claims for service connection for bilateral hearing loss and tinnitus that was received on September 9, 2015, followed by a formal application in June 2016. In a January 2018 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus and assigned effective dates from September 9, 2015. The Veteran filed a notice of disagreement in March 2018 and alleged CUE in regard to the effective dates of the awards. The November 1979 Board decision subsumed the January 1979 RO decision, 38 C.F.R. § 20.1104, and became final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100(a). As the Veteran did not appeal the decision, nor was reconsideration neither sought nor granted, the Board decision became final. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). In light of the procedural history delineated above, the only avenue for obtaining an earlier effective date is a request for revision of the prior November 1979 Board decision based on clear and unmistakable error. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed.Cir.2005) (“[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”). Thus, as the Board is granting the CUE Motion and thereby granting an effective date of December 5, 1978, the receipt date of the Veteran’s initial claims for service connection for bilateral hearing loss and tinnitus, the Veteran’s separate appeal with regard to claims for earlier effective dates for the grant of service connection for bilateral hearing loss and tinnitus, are rendered moot and dismissed in a separate Board decision. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice at 38 C.F.R. §§ 20.1400-11. A motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been 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 the requirement of the pleading requirements, and must be dismissed. Id. CUE is defined as a very specific and rare 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. 38 C.F.R. § 20.1403(a). Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Id. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b). However, to warrant revision on the grounds of CUE, 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 CUE. 38 C.F.R. § 20.1403(c). Furthermore, there are certain enumerated examples of situation that are not considered CUE, including the following: (1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) Duty to assist. The Secretary’s failure to fulfill the duty to assist; (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Additionally, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1404(d). The above-cited regulatory authority was promulgated with the intent to adopt the CUE standard as set forth by the United States Court of Appeals for Veterans Claims (Court). See 63 Fed. Reg. 27534, 27536 (1998). The Board may, therefore, rely on the prior precedential decisions of the Court as to what exactly constitutes a valid claim of CUE. The Court, in Damrel v. Brown, 6 Vet. App. 242,245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), stated that for CUE to exist, (1) “[e]ither the correct facts, as they were known at that 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 the time were incorrectly applied,” (2) the error must be “undebatable” and 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. “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). Clear and unmistakable errors “are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell, 3 Vet. App. at 313. “It must always be remembered that CUE is a very specific and rare kind of ‘error.’” Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. Thus, meeting the filing and pleading requirements of 38 C.F.R. §§ 20.1400(a), 1404(a), (b). At the time of the November 1979 Board decision, the law governing service connection are essentially the same as to today. Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 331 (1979) (now codified as 1131 (2002)); 38 C.F.R. § 3.303 (1979). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term “active military, naval, or air service” means active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24) (1979, 2002). Aside from minor technical revisions, the law governing the presumption of soundness is also essentially unchanged from the statutory and regulatory provisions in effect at the time of the Board decision in November 1979. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991) (wartime presumption of soundness in 38 U.S.C. §§ 310, 311, renumbered in 1991 to their current designations of § 1110, § 1111, was without substantive change since 1946). 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, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 332 (1979) (now codified at 38 U.S.C. § 1111 (2002)). A preexisting injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C. § 353 (1979) (now codified at 38 U.S.C. § 1153 (2002)); 38 C.F.R. § 3.306 (1979). There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. 38 C.F.R. § 3.303(c) (1979). Notably, in George v. McDonough, 991 F.3d 1227 (Fed. Cir. 2021), the Federal Circuit held that Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), which held VA must show “clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness, does not apply retroactively.” Thus, although the VA must still show clear and unmistakable evidence of a preexisting condition, the VA is not required to show a preexisting condition was not aggravated by service under the CUE burden of proof. As noted earlier, the presumption of soundness may be rebutted only by clear and unmistakable evidence that an injury or disease existed prior to service. 38 C.F.R. § 3.304(b). Therefore, at the time of the November 1979 Board decision, the burden of proof was on the Board to rebut the Veteran’s presumption of soundness by clear and unmistakable evidence that the veteran’s bilateral hearing loss with tinnitus existed prior to service. However, a review of the record indicates that the Board failed to correctly apply statutory and regulatory provisions pertaining to the presumption of soundness. In this regard, in denying the claim for bilateral hearing loss with tinnitus in November 1979, the Board noted that the November 1965 pre-induction examination did not document decibel hearing loss, and that despite the 1966 bilateral high frequency hearing loss, he had normal hearing in the 1968, with a mild high frequency loss in January 1969. The Board then noted that data recorded for clinical purposes noted a chronic ear infection. The Board concluded that in view of the nature of the pre-existing chronic ear infections and the fluctuating audiometric testing results during service, the Board can only conclude that hearing problems recorded during service were merely acute and transitory manifestations of the chronic ear infections and did not reflect the onset of chronic defective hearing at that time. The Board also noted that the Veteran reported that he noticed his hearing loss in 1971, several years after service. Here, a diagnosis of bilateral hearing loss with tinnitus or chronic ear infections was not noted in the June 1965 pre-induction examination and the record is absent of any diagnoses of ear infections, to include as the cause of hearing problems, prior to or during service. Although the Board was not precluded from relying upon its own medical judgment to support its conclusions at the time of the November 1979 decision, as a medical member of the Board participated in the decision, the Board’s conclusion that the Veteran’s bilateral hearing loss with tinnitus pre-existed service is not based on the review of any medical documentation or record but on the lay statements of the Veteran’s report of chronic ear infections in the June 1965 Report of Medical History, which is a separate and distinct diagnosis from bilateral hearing loss and tinnitus, and not noted as a defect upon entry. Cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board cannot substitute its own medical judgment for that of medical professionals). Therefore, the Board cannot now conclude that the evidence undebatably, i.e., clearly and unmistakably, showed that the Veteran’s bilateral hearing loss with tinnitus pre-existed service. The Board finds that the evidence of record showed that the Veteran was in sound condition, as understood by 38 U.S.C. § 332, upon his entrance to active duty. Therefore, the Board finds that the presumption of soundness was not rebutted by clear and unmistakable evidence. The November 1979 Board decision erred in failing to apply the presumption of soundness and that error, had it not been made, would have manifestly changed the outcome entered at the time of that decision, as the evidence indicates that the Veteran incurred bilateral hearing loss with tinnitus service. Even assuming that there was clear and convincing evidence that the bilateral hearing loss and tinnitus existed prior to service, the Board had not shown lack of aggravation during service-VA’s duty under the second prong of the presumption of soundness. To do so, the Board must establish that there was no increase in disability during such service, or that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Despite the Board’s November 1979 conclusory finding that there was no increase in the Veteran’s bilateral hearing loss during service, as explained in detail below, if the Veteran’s bilateral hearing loss had pre-existed service, the STRs do in fact document that the Veteran’s bilateral hearing loss worsened during service, specifically in the June 1966 audiogram (bilateral ear hearing loss) and January 1969 (left ear hearing loss) discharge audiogram. At the time of the November 1979 Board decision, the definition of a hearing loss disability was not codified as it is currently. Cf. 38 C.F.R. § 3.385 (2002). Rather, VA Administrative Manual, M21-1 defined what was considered normal hearing acuity at 50.07(a) (Change 149, December 23, 1976). That manual provision stated hearing is within normal limits where the speech reception threshold is less than 26 decibels and the discrimination score is higher than 92 percent and where the pure tone thresholds in the 250-500-1000-2000-4000 Hertz range are all less than 40 decibels with at least four of the frequencies 25 decibels or less. Id. The November 1965 pre-induction and June 1966 examination audiograms were prior to November 1, 1967, and thus the Board finds that the audiometric testing was done under the ASA standard and must be converted ISO-ANSI and has converted the units as reflected below in parentheticals. HERTZ-November 1965 Pre-Induction 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) - 0 (5) LEFT 0 (15) 0 (10) 0 (10) - 0 (5) HERTZ-June 1966 examination 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) - 45 (50) LEFT 10 (25) 5 (15) 5 (15) - 50 (55) HERTZ-August 1968 examination 500 1000 2000 3000 4000 RIGHT 0 5 0 10 10 LEFT 0 0 0 10 10 HERTZ-January 1969 Discharge 500 1000 2000 3000 4000 RIGHT 15 0 10 - 50 LEFT 25 10 0 - 20 The November 1965 pre-induction examination documented normal hearing. However, the June 1966 examination document bilateral hearing loss consistent with VA Manual M21-1 50.07(a). The January 1969 discharge examination documents hearing loss in the left ear. Despite the fluctuations in the Veteran’s audiograms during service, as the service treatment records document bilateral hearing loss in June 1966, and left ear hearing loss in January 1969, the error is undebatable. Based on the record and law that existed in November 1979, the Veteran incurred bilateral hearing loss during service, as he was presumed sound upon entry to service. Under such facts, service connection would be warranted at the time of the November 1979 Board decision. As to the claim for service connection for tinnitus, as the record reflects that tinnitus has been associated with the Veteran’s bilateral hearing loss as noted in the January 1979 rating decision, as well as the November 1979 Board decision, service connection on a secondary basis would also be warranted at the time of the November 1979 Board decision. As stated above, the RO and the Board were not precluded from relying upon its own medical judgment to support its conclusion that tinnitus was associated with bilateral hearing loss, as physicians participated in the decision and was a signatory to the determination. The signatures from the medical professionals reflect their agreement with the finding that the Veteran’s tinnitus is associated with the Veteran’s bilateral hearing loss. Cf. Colvin, supra. Based on the foregoing findings, the Board concludes that the November 1979 Board decision was clearly and unmistakably erroneous and should be reversed, resulting in the grant of service connection for bilateral hearing loss and tinnitus, each with an effective date from December 5, 1978, the receipt date of the initial claims for service connection for bilateral hearing loss and tinnitus that led to the November 1979 Board decision. D. Martz Ames 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.