Citation Nr: 21027064 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-27 723 DATE: May 4, 2021 ORDER Entitlement to revision of a May 11, 2005, rating decision that denied service connection for tinnitus, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is granted, and the decision is revised to reflect an award of service connection for tinnitus from November 16, 2004. FINDINGS OF FACT 1. The May 11, 2005, rating decision that denied service connection for tinnitus became final because the Veteran did not timely appeal. 2. The RO failed to consider the correct facts as shown in the evidence of record at the time of the May 11, 2005, rating decision, and this error compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different. CONCLUSION OF LAW The May 11, 2005, rating decision that denied service connection for tinnitus was clearly and unmistakably erroneous, and the decision is revised to reflect an award of service connection for tinnitus from November 16, 2004. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1968 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a November 10, 2020, videoconference hearing before the undersigned Veterans Law Judge (VLJ) at the Portland, Oregon RO. A transcript of the hearing is associated with the electronic claims file. The Veteran asserts CUE in a May 11, 2005, rating decision that denied service connection for tinnitus. The Veteran contends that he had an in-service diagnosis of tinnitus on September 27, 1968 while stationed at Fort Belvoir, Virginia. He asserts that at the April 1971 VA examination, he was asked about the ringing in his ears. The Veteran contends that he reportedly replied by stating that he then-currently did not have it as it would come and go but was not constant. He further asserts that the RO in its May 2005 rating decision did not discuss positive evidence of record, to include a treatment note dated November 2005 that provided a positive nexus. The Veteran also contends that VA requested evidence from the Veteran, albeit for hearing loss, upon receipt of his November 16, 2004 claim. At the November 2020 Board hearing, the Veteran and his representative asserted that although evidence specific to the tinnitus claim was submitted, the RO, in the May 2005 rating decision, indicated that no information was received in its basis for the denial of the service connection claim. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). A May 2005 rating decision denied service connection for tinnitus. The Veteran did not file a timely Notice of Disagreement specifically challenging this determination within one year of the decision. Thus, the May 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory 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. Id. 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). 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. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Service treatment records dated September 1968 document the Veteran's reports of intermittent tinnitus. Subsequent records dated September 1968 and April 1970 reflect that the Veteran was placed on physical profile with a "Code J limitation" for no assignment involving habitual or frequent exposure to loud noises or firing of weapons due to the Veteran's diagnosis of sensorineural hearing loss. In an April 1970 separation examination, the Veteran endorsed "ear, nose, or throat trouble" and "hearing loss." The Board notes that following a June 1970 claim of service connection specifically for hearing loss, the Veteran was afforded a VA examination in April 1971. The examination report indicated that the Veteran endorsed an inability to hear well in the right ear, that he had to ask for "many repeats" and could hear a conversation but could not understand it. The VA examiner noted that the Veteran gave "no history of ringing in either ear except for a short while, which has now cleared." It was further reported that the Veteran was exposed to considerable noise while in service. VA outpatient treatment records reflect that the Veteran presented in November 2004 to establish care. The Veteran endorsed hearing problems. The examining clinician indicated that "this is almost certainly a [service connection] problem as he has hearing problems clearly outlined in his service papers and also tinnitus is noted on the same papers." The Board notes that the examining clinician also advised the Veteran to pursue a service connection claim with VA. Thereafter, the Veteran submitted a claim for service connection for tinnitus in an Application for Compensation (VA 21-526), which was received by the RO on November 16, 2004. The RO, in a May 11, 2005, rating decision, denied entitlement to service connection for tinnitus. The RO stated that "the VA examiner" noted in an examination to establish care at an outpatient clinic that the Veteran's service medical records indicated a report of tinnitus by the Veteran. The RO further stated that a review of the Veteran's service medical records showed that the Veteran reported intermittent tinnitus at an examination during service, but at the next examination, stated that the tinnitus had resolved. The rating decision noted that the Veteran was advised in a VA Duty to Assist letter dated December 14, 2004 that evidence was needed to support his claim, but that to date no information was received. The RO concluded that a disability which began in service or was caused by some event in service must be considered "chronic" before service connection can be granted. The RO acknowledged that while there is a record of a complaint of intermittent tinnitus during service, a subsequent examination report indicated that the Veteran reported that the tinnitus had resolved. The RO concluded that since there was no permanent residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service, service connection must be denied. The May 2005 rating decision is based on incorrect facts and application of the laws and regulations governing service connection. The evidence of record reflects a continuity of symptomology since service. Further, on the face of the May 2005 rating decision, the RO did not appear to consider the positive nexus opinion provided by the examining VA clinician in November 2004, as the RO explicitly stated that "no information was received" regarding his tinnitus claim. Thus, the question before the Board is whether correction of this error would result in a change of the outcome of the case, such that it is undebatable that service connection for tinnitus would have been granted should the correct facts and laws and regulations governing service connection were considered. The evidence of record at the time of the May 2005 rating decision does demonstrate that it was undebatable that service connection for tinnitus was warranted. The RO misapplied the chronicity and continuity provision under 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Although the reported history of the Veteran's tinnitus at the April 1971 VA examination suggested that tinnitus had resolved, subsequent treatment records submitted in support of the November 2004 claim clearly demonstrate that the disability had not resolved. The inferred negative judgment here was exercised based on clearly and unmistakably incorrect facts and misapplication of 38 C.F.R. § 3.303. Further, there is no notation of tinnitus upon the Veteran's entry into active service. The correct facts, laws, and regulations demonstrated that there were documented reports of tinnitus with a history of acoustic trauma attributable to service. Acknowledged competent and credible lay reports in November 2004 treatment records document continuity of those same symptoms, and, most importantly, the examining VA clinician related these symptoms to the currently diagnosed tinnitus. The totality of this evidence, all of record at the time of the May 2005 rating decision, leads to the undebatable and inescapable conclusion that service connection was warranted at that time. In summary, the Board finds that the record shows that the RO did not have the correct facts before it at the time of its May 2005 rating decision and consideration of the correct facts mandated award of the benefit sought. Therefore, the Veteran's motion for revision of the May 2005 decision is granted, and it is changed to reflect an award of service connection for tinnitus, effective November 16, 2004. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.