92 Decision Citation: BVA 92-04311 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-16 767 ) DATE ) ) ) THE ISSUE Whether clear and unmistakable error was associated with the June 1985 regional office decision to deny service connection for a hearing loss. REPRESENTATION Appellant represented by: Navy Mutual Aid Association ATTORNEY FOR THE BOARD J. T. Manning, Counsel INTRODUCTION The veteran performed more than 20 years active service from June 1944 to June 1964. In June 1985, the Los Angeles, California, Regional Office (hereinafter RO) denied the veteran's claim for service connection for a hearing loss. A notice of disagreement was received in April 1986. He was issued a statement of the case in May 1986. No substantive appeal was filed. In July 1989, the veteran applied to reopen his claim for service connection for a hearing loss. This matter came before the Board on appeal from an August 1989 rating decision of the RO which denied that application. The veteran was advised of this decision in September 1989. A notice of disagreement was received in August 1990. He was issued a statement of the case in November 1990. He filed a substantive appeal in December 1990. This case was docketed at the Board in April 1991. Throughout this claim the veteran has been represented by the Navy Mutual Aid Association. In July 1991, that organization submitted a written memorandum in support of the claim. In view of the contentions advanced in support of this claim, the Board construes the issue to be as set forth on the preceding page. CONTENTION OF APPELLANT ON APPEAL The veteran contends that clear and unmistakable error was associated with the June 1985 RO decision to deny the claim for service connection for a hearing loss. It is asserted that he was exposed to acoustic trauma resulting from loud gunfire over an extended period of time. It is claimed that the hearing examinations conducted at the time of his pre-retirement physical in May 1964 and at the VA examination in March 1985 support a finding that clear and unmistakable error was associated with the prior denial of his claim. FINDINGS OF FACT 1. A bilateral sensorineural hearing loss was first demonstrated in, and has been confirmed subsequent to, service. 2. In June 1985, service connection for hearing loss was denied by the RO. CONCLUSIONS OF LAW 1. The June 1985 decision by the RO, denying service connection for hearing loss, was clearly and unmistakably erroneous, and is not final. 38 U.S.C. § 7105 (1988) (formerly § 4005); 38 C.F.R. §§ 3.104(a), 3.105(a), 19.129(b) (1991). 2. Bilateral sensorineural hearing loss was incurred in service. 38 U.S.C. §§ 1110, 1131 (1988) (formerly §§ 310, 331). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to 38 C.F.R. §§ 3.104 and 3.105, a decision by the RO will be final and accepted as correct in the absence of clear and unmistakable error. Although the veteran initiated an appeal by filing a notice of disagreement with the June 1985 denial, he did not complete the appeal by filing a substantive appeal after issuance of the statement of the case. Therefore, the June 1985 decision became final. 38 C.F.R. § 19.129(b). In this case, at the time of the June 1985 RO decision, the evidence of record included the veteran's pre-retirement examination conducted in May 1964 and a VA examination conducted in March 1985. The audiogram made in connection with the pre-retirement examination, when converted to ISO units, showed a pure tone air conduction threshold of 30 decibels at the 4,000 hertz frequency, bilaterally. Thresholds of 30 or more decibels were also recorded at 3,000 and 6,000 hertz, in both ears. Very mild sensorineural high frequency perceptive loss was diagnosed. At the March 1985 VA examination, there were 45 and 50 decibel pure tone air conduction thresholds at the 4,000 hertz frequency in the right and left ears, respectively, and a threshold of 30 decibels at the 2,000 hertz frequency in the left ear. The discrimination scores at that time were 94 in the right ear and 92 in the left ear. As a result of this examination, a diagnosis of bilateral sensorineural hearing loss was made. Under instructions set forth in VA Manual M21-1, Section 50.07, Change 149 (December 23, 1976), the following is described as normal limits of hearing: In consideration of service connection, hearing is within normal limits (under ISO (ANSI) values) 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 250-500-1,000-2,000-4,000 (hertz) range are less than (40) decibels with at least (4) of the frequencies (25) decibels or less. (Emphasis in original). In deciding this case in June 1985, the RO was aware of the diagnosis of bilateral sensorineural hearing loss which was made at the time of the veteran's pre-retirement examination and at the March 1985 VA examination. However, it determined that because the audiogram at retirement did not demonstrate a hearing loss under VA standards, service connection for the hearing loss shown in 1985 could not be granted. On the facts of this case, we find that determination to have been clearly and unmistakably erroneous. The error occurred in applying the VA standard then in effect to an audiogram which did not satisfy the evidentiary requirements of that standard. The standard required measurement of thresholds at 250, 500, 1,000, 2,000 and 4,000 hertz; and speech reception examination. The 1964 audiogram did not measure the threshold at 250 hertz, and did not include speech reception testing. Therefore, the RO should not have applied the M21-1 standard, but should have accepted the 1964 diagnosis of sensorineural perceptive loss. In light of these circumstances, we conclude that clear and unmistakable error was associated with the March 1985 RO decision to deny service connection for bilateral hearing loss. (NOTE: The section numbers of title 38, United States Code, were changed in 1991. The new section numbers are given above, followed, in parentheses, by "formerly §" and the old section numbers in effect prior to the 1991 revisions.) ORDER Clear and unmistakable error having been shown in the June 1985 decision, entitlement to service connection for bilateral hearing loss is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 J. F. GOUGH W. H. YEAGER, JR., M.D. J. E. DAY NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991) (formerly § 4066), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.