Citation Nr: 21032385 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-11 845 DATE: May 26, 2021 ORDER The appeal for an effective date prior to September 14, 2017 for the grant of service connection for bilateral sensorineural hearing loss due to clear and unmistakable error in the August 14, 2007 rating decision is denied. FINDINGS OF FACT 1. The Veteran failed to establish an error of fact or law in the August 14, 2007 rating decision that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, the result would have been manifestly different but for the error. 2. The claims file does not contain any communication or evidence received after the final August 2007 rating decision that denied entitlement to service connection for bilateral hearing loss and prior to September 24, 2017, which could be interpreted as an informal or formal claim to reopen entitlement to service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 14, 2017 for the grant of service connection for bilateral sensorineural hearing loss to include on the basis of CUE in the August 14, 2007 rating decision are not met. 38 U.S.C. §§ 5107, 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1966 to January 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2018 Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for bilateral hearing loss, and assigned an initial 20 percent disability rating, effective from September 14, 2017. The Veteran's notice of disagreement (NOD) with respect to the effective date assigned to include as due to CUE in the August 2007 rating decision was received in January 2018. The RO issued a statement of the case (SOC) in February 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in March 2018. In July 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Entitlement to an effective date prior to September 14, 2017 for the grant of service connection for bilateral sensorineural hearing loss due to clear and unmistakable error in the August 14, 2007 rating decision. The Veteran contends that he is entitled to an earlier effective date of August 22, 2007, which is the date he was notified of the denial of his original service connection claim for bilateral hearing loss, for the grant of service connection for bilateral hearing loss. See January 2018 notice of disagreement and March 2018 VA Form 9. The Veteran contends that there was either an error of fact or interpreting the law when the RO denied the service connection claim for bilateral hearing loss in the August 2007 rating decision as the Veteran's service treatment records showed a threshold shift in hearing loss when comparing the audiograms in the entrance examination and separation examination. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). As of March 24, 2015, specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a), 38 C.F.R. § 3.150. A claimant who indicates a desire to file for benefits, by a communication or action, that does not meet the standards of a complete claim is considered a request for an application form for benefits under §3.150(a) and the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary. If a formal claim is received within one year of the informal claim or notification of intent to file it will be considered filed as the date of the informal claim or intent to file. 38 U.S.C. § 3.155. Prior to March 24, 2015, informal claims were recognized. Any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2014). An informal claim must identify the benefit sought. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). 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). In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; 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. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). 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). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination. First, 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 the time were incorrectly applied. Second, 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." Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Historically, the Veteran originally filed a service connection claim for hearing loss in May 2007. The RO denied service connection for hearing loss on the basis that that the Veteran had normal hearing for VA purposes at the time of separation from military service, the medical evidence does not show that his hearing loss was manifested to a degrees of 10 percent or more during the first year after discharge from service, and the VA examiner determined that it is not likely that his bilateral hearing loss is related to his military service in an August 2007 rating decision. The RO notified the Veteran of this decision in August 2007 at the Veteran's then current address of record. The Veteran did not appeal this decision. The record does not reflect that new and material or relevant evidence was received during the one-year appeal period following the notice of the August 2007 rating decision and no additional, relevant service records, warranting reconsideration of the claim, was received at any time thereafter. See 38 C.F.R. § 3.156(b), (c). Thus, the August 2007 rating decision is final. The August 2007 rating decision is therefore accepted as correct unless there is a finding of CUE in the rating decision. See 38 C.F.R. § 3.105(a). As noted above, the Veteran asserts that there was CUE in the August 2007 rating decision. The Board finds that the Veteran's allegation of CUE concerns, at least in part, center around the RO's interpretation of the evidence in its August 2007 rating decision. In this regard, the Veteran asserts that the RO in August 2007 did not compare the results of his exit examination with his entrance examination. See November 2017 claim and July 2020 Hearing Transcript. The Veteran contends that there is an obvious shift in hearing from entrance to exit examination. He further contends and at the time of the August 2007 rating decision and based on Hensely v. Brown, 5 Vet. App. 155 (1993), the RO should have granted service connection for bilateral hearing loss in the August 2007 rating decision. There is no indication that the correct facts were not available to the RO as the RO listed the Veteran's service treatment records from December 15, 1965 through November 13, 1967 as part of the evidence considered in that rating decision. The Veteran has indicated that the RO misinterpreted the facts and appeared to not have considered the threshold shift in service or considered the decision in Hensley; however, this is an argument is a disagreement as to how the facts were weighed, and that can never rise to the level of CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253(1991). Furthermore, although the Veteran couched his argument in terms of the RO's failure to correctly apply the law with respect to the evidence of a threshold sift in hearing during service, the Veteran's allegations, essentially, constitute a disagreement with how the RO evaluated the evidence in its final decision to deny service connection. In this regard, the August 2007 rating decision indicates that the RO reviewed the service treatment records, which included the audiogram results in the entrance and separation examinations. The RO gave more weight to the fact that the Veteran did not meet the requirements of a hearing loss disability for VA purposes during service; the medical evidence that does not show that his hearing loss was manifested to a degrees of 10 percent or more during the first year after discharge from service; and, the VA examiner's medical opinion. The Veteran's assertions essentially constitute disagreement with how the RO evaluated the evidence in its final decision to deny service connection. A dispute as to how the RO evaluated and interpreted evidence cannot constitute CUE under VA law. See Baldwin v. West, 13 Vet. App. 1 (1999); Damrel v. Brown, 6 Vet. App. 242 (1996). During the July 2020 hearing, the Veteran also asserted that the RO should have noted that there was a threshold shift during service in the rating decision and preferably would have requested an addendum opinion. The Veteran stated that at the time of the August 2007 rating decision he was unaware that his records showed a threshold shift and he might have decided to appeal at that point. It appears that the Veteran is asserting that the RO not discussing the threshold shift that occurred during service constitutes a violation of his due process. The basic requirements of due process are notice and the opportunity to be heard. Thurber v. Brown, 5 Vet. App. 119, 122 (1993) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). The Veteran was provided with notice in June 2007 and an opportunity to be heard and to develop his claim at the time of the August 2007 rating decision. Furthermore, the RO notified the Veteran in an August 2007 letter of the denial of his service connection claim for hearing loss. The letter included a copy of the rating decision, and provided him with the opportunity to appeal the claim. Thus, there is no evidence of a due process violation. The above assertions by the Veteran also indicate that the RO committed CUE by not adequately fulfilling its duty to assist the Veteran in developing his claim in that it relied on an inadequate examination as the examiner did not appear to have considered the threshold shift in hearing from the entrance examination and separation examination. However, allegations that VA failed in its duty to assist are insufficient to form a basis for a claim of CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) (holding that failure to fulfill duty to assist cannot constitute [CUE]). Based on the foregoing, the Board has determined that the RO did not commit CUE in the August 2007 rating decision. The Veteran has not shown either that the correct facts were not available to the RO, or that the laws at that time were not correctly applied. Consequently, the criteria for showing CUE in the August 2007 rating decision are not met. After the August 2007 rating decision that denied service connection for bilateral hearing loss, the RO received a completed VA Form 21-0966, Intent to File, on September 14, 2017. In November 2017 (within one year of the notice of the Veteran's intent to file a claim), the RO received a completed VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, requesting that his previously denied bilateral hearing loss be reopened due to CUE. In a January 2018 rating decision, the RO granted service connection for bilateral hearing loss, effective September 14, 2017, the date the RO received the Veteran's Intent to File form. There is no other communication or action from the Veteran in the claims file indicating that he had an intent to apply for service connection for hearing loss after the August 2007 rating decision and prior to March 24, 2015 or the RO receive an application in the form prescribed by the Secretary of VA with respect to a service connection claim for hearing loss from March 24, 2015 to September 14, 2017. See 38 C.F.R. § 3.400(q)(2) and (r). In summary, the effective date assigned for the Veteran's service-connected hearing loss is the latter of the date of the claim to reopen after final disallowance and the date entitlement arose, pursuant to 38 C.F.R. § 3.400. For the reasons set forth above, there is no legal basis upon which to assign an earlier effective date for the grant of service connection for hearing loss. Thus, the assignment of an earlier effective date for the grant of service connection for bilateral hearing loss is not warranted L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.