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Bva - Cue - Decision Date: 10/03/12
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carlie
http://www.va.gov/vetapp12/Files5/1234447.txt
Nevertheless, after considering the reason set forth in the March 1969 rating decision, the Board finds that the RO committed CUE in that it failed to properly apply the applicable law and regulation to the issue.
The RO clearly found that the Veteran's hearing loss pre-existed his entry into service. Although not explicitly stated, it can be inferred that the RO found that the Veteran's pre-existing hearing loss was aggravated in service.
Thus, the presumption of aggravation applied.
The RO erred, however, in applying the clear and unmistakable evidence standard to rebut the presumption of soundness.
The reason set forth by the RO clearly demonstrates that it required clear and unmistakable evidence to show aggravation beyond the natural progression of the condition, but the standard set forth in the applicable regulation is that there must be clear and unmistakable evidence that the aggravation was NOT beyond the natural progression of the condition.
By requiring clear and unmistakable evidence to show aggravation beyond the natural progression, the RO impermissibly placed the burden of proof on the Veteran when the burden to rebut the presumption is actually on VA.
Finally, had the RO properly applied the clear and unmistakable evidence standard in rebutting the presumption of aggravation, it would have had no choice but to grant service connection for hearing loss because there was no evidence to demonstrate that the Veteran's hearing loss was not aggravated beyond its natural progression.
Accordingly, the Board finds that the RO committed CUE in the March 1969 rating decision when it denied service connection for hearing loss.
Given the procedural history of this case, however, the Board will defer a decision on an earlier effective date to the RO for adjudication in accordance with this decision.
ORDER
The March 1969 rating decision that denied service connection for hearing loss was clearly and unmistakably erroneous and, to that extent only, the appeal is granted.
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