Citation Nr: 22016580
Decision Date: 03/22/22	Archive Date: 03/22/22

DOCKET NO. 19-28 302
DATE: March 22, 2022

ORDER

The severance of service connection for tinnitus was not proper, and restoration of service connection for tinnitus is granted.

FINDING OF FACT

In a September 2018 rating decision, the agency of original jurisdiction (AOJ) severed service connection for tinnitus, effective December 1, 2018, on the basis of clear and unmistakable error. Based on the current evidence of record, service connection for tinnitus is not clearly and unmistakably erroneous.  

CONCLUSION OF LAW

The severance of the award of service connection for tinnitus was not proper. 38 U.S.C. §§ 1110, 5107(b), 5112; 38 C.F.R. §§ 3.102, 3.105(d), 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1977 to January 1980.

This matter comes before the Board of Veteran's Appeals (Board) from a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2022, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing will be associated with the record. As the decision rendered herein is favorable to the Veteran, there is no prejudice to the Veteran in adjudicating the matter on appeal on the evidence of record.

Severance of service connection for tinnitus was not proper

Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105 (d).

To establish that a grant of service connection was the product of clear and unmistakable error, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403 (a).

In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105 (a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id.

However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. "[C]onsequently, the severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous." Stallworth, 20 Vet App. at 488.

Relevant procedural history

By way of history, a November 2017 rating decision, inter alia, granted service connection for tinnitus, effective June 28, 2017. The award of service connection appears to have been based on a misreading of the medical opinion contained in a Hearing Loss and Tinnitus Disability Benefits Questionnaire (Tinnitus DBQ) of October 2017, which determined the Veteran's tinnitus was a symptom of his hearing loss. 

That same month, the AOJ, issued a rating decision proposing the severance of the service connection award for tinnitus, on the basis of clear and unmistakable error.  

In March 2018, the Veteran was sent a notification of the proposed severance, invited to submit evidence showing the change should not be made within 60 days and informed him of the opportunity to provide testimony in a hearing. See VA correspondence of March 2018.

Later that month, the Veteran submitted a statement noting that he has had tinnitus since his time in service and that he was exposed to hazardous noise while in service. He also asserted that he had suffered from constant ringing and buzzing since separating from service. See VA Form 21-4138, of March 2018. 

In September 2018, service connection for tinnitus was severed, effective December 1, 2018. The decision was based on the Tinnitus DBQ of record which associated the Veteran's tinnitus to his hearing loss, which has not been service connected. See September 2018 rating decision. The Veteran was notified of this decision and provided information on his appellate rights. The Veteran disagreed with that decision by presenting a completed notice of disagreement (NOD) in June 2019. A Statement of the Case (SOC) was issued on August 2019, and the Veteran perfected his appeal to the Board in September 2019 by presenting a completed VA Form 9. 

Analysis

The above-mentioned procedural history reflects the AOJ followed the prescribed regulatory procedural safeguards for severing service connection, as the Veteran was notified of the proposed action, provided information on the reasons for the action, and was provided 60 days to present additional evidence showing the service connection should be maintained, as well as the opportunity to request a predetermination hearing. See November 2017 rating decision and VA Correspondence of March 2018. After the provided period to submit evidence expired, the RO issued the September 2018 rating decision that severed the service connection, prospectively effective December 1, 2018. 38 C.F.R. § 3.105(d).

Thus, as the procedural safeguards for severance of service connection were followed by the AOJ; the Board must determine whether the substantive requirements to sever a grant of service connection were met. That is, the Board must determine whether, based on the current evidence of record, service connection for tinnitus is clearly and unmistakably erroneous. 

Here, the evidence of record shows the Veteran has reported having tinnitus and that his military occupational specialty (MOS) had a high probability of hazardous noise exposure. See Tinnitus DBQ of October 2017 and DD214.

The subscriber of the Tinnitus DBQ of October 2017, opined the Veteran's tinnitus was at least as likely as not a symptom of his hearing loss. However, the examiner did not provide an opinion on whether the Veteran's tinnitus was at least as likely as not related to service. 

In March 2018, the Veteran presented a lay statement in favor of the continuance of service connection for tinnitus. In essence, the Veteran asserted his tinnitus began in service after hazardous noise exposure and that the condition has continued to affect him ever since. Despite the lay evidence provided by the Veteran regarding an in-service onset, the AOJ issued the rating decision severing the service connection. 

In August 2019, an addendum opinion addressing the likely etiology of the Veteran's tinnitus was associated with the claims file. The examiner opined that it was less likely as not that the Veteran's tinnitus was related to service because his entrance and separation examination showed "normal hearing" bilaterally with no significant threshold shifts indicative of noise injury. As the examiner found not objective evidence of noise injury in the Veteran's military records, he concluded the condition was less likely as not related to service, even in consideration of the Veteran's MOS with high probability for noise exposure. The examiner also noted the Veteran's statement of March 2018 regarding having tinnitus since service was considered but that because the objective evidence in the record, consisting of the examination reports for entrance and separation from service, did not show a noise-related injury, that it was less likely as not the condition was related to service. See addendum of August 2019.

The Board finds the aforementioned evidence was not sufficient to support a severance of the service connection for tinnitus or in other words, the current evidence of record does not show that service connection for tinnitus is clearly and unmistakably erroneous. Stallworth, 20 Vet. App. 482. Rather, the current evidence of record shows that reasonable minds could differ on whether the Veteran's tinnitus warrants service connection. See Stallworth, 20 Vet. App. 482; Allen, 21 Vet. App. 54.

Here, the Veteran has reported that his tinnitus had its onset in service and has continued to affect him ever since. This statement reasonably raises the possibility of supporting service connection on a presumptive basis for a chronic disease, based on continuity of symptomatology as tinnitus is a type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). It is observed that in severing service connection, the AOJ did not specifically address the Veteran's assertion that his tinnitus started in service nor was a credibility determination made by the AOJ. Thus, the evidence of record does not clearly and unmistakably show that service connection for tinnitus is not warranted. In reaching this conclusion, the Board has considered the addendum opinion of August 2019 addressing the likely etiology of the Veteran's tinnitus. However, the Board finds this opinion is insufficient to find that service connection for tinnitus is clearly and unmistakably erroneous, in view of the totality of the evidence and the Veteran's reported in-service onset. 

Under these circumstances, the Board finds the high burden of proof for severance of service connection under 38 C.F.R. § 3.105 (d), has not been met. Accordingly, the severance of service connection for tinnitus was not proper and restoration of service connection for tinnitus is warranted.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Gonzalez-Maldonado

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.