carlie Posted January 13, 2006 Share Posted January 13, 2006 Citation Nr: 0506205 Decision Date: 03/04/05 Archive Date: 03/15/05 DOCKET NO. 00-13 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than April 13, 1998, for the grant of service connection for bilateral hearing loss, to include the issue of whether there was clear and unmistakable error (CUE) in the September 1989 rating decision that previously denied this claim. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD Michelle Kane, Senior Counsel INTRODUCTION The veteran had active military service from February 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied an effective date earlier than April 13, 1998, for the grant of service connection for bilateral hearing loss. Service connection was granted for this condition in a March 1999 rating decision, and in May 1999 the veteran requested an earlier effective date. As part of the veteran's claim that he is entitled to an earlier effective date, he has argued that the prior denial of the claim was erroneous. A claim of clear and unmistakable error (CUE) is related to a claim for an earlier effective date, and both issues are, therefore, before the Board. See Crippen v. Brown, 9 Vet. App. 413, 420 (1996) (appellant reasonably raised claim for CUE with the requisite specificity because he argued for an earlier effective date asserting that evidence compelling a grant of service connection was of record at the time of the prior final rating decisions), citing Dinsay v. Brown, 9 Vet. App. 79, 87-88 (1996) (claim for an earlier effective date was claim of CUE in final RO decision disallowing claim); Flash v. Brown, 8 Vet. App. 332, 340 (1995) (to be awarded earlier effective date, veteran must show CUE in RO decision disallowing higher rating). The August 2002 and August 2004 supplemental statements of the case (SSOCs) denied an effective date earlier than April 13, 1998, for the grant of service connection for bilateral hearing loss, to include a finding that the September 1989 rating decision that initially denied the claim was not clearly and unmistakably erroneous. Accordingly, the issue on appeal has been rephrased as shown above. In September 2004, the veteran had a personal hearing at the Waco RO before the undersigned Acting Veterans Law Judge. FINDINGS OF FACT 1. The veteran's informal original claim for service connection was received in June 1989. 2. A September 1989 rating decision denied service connection for hearing loss, and the veteran was notified of that decision and his appeal rights in September 1989. No correspondence was received from him within the appeal period. 3. The September 1989 rating decision failed to consider applicable law and evidence favorable to the veteran's claim. CONCLUSION OF LAW The September 1989 rating decision denying service connection for hearing loss was based on clear and unmistakable error, and service connection for hearing loss is granted as of June 26, 1989. 38 U.S.C.A. § 1154(B) (West 2002); 38 C.F.R. §§ 3.105(a), 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, it is not required to discuss each and every piece of evidence in a case. The evidence submitted by the veteran or on his behalf is extensive and will not be discussed in detail. Rather, the Board will summarize the relevant evidence where appropriate. The veteran's informal original claim for service connection for hearing loss was received on June 26, 1989. A September 1989 rating decision denied service connection for this condition. The veteran was notified of that decision and his appeal rights in September 1989. No correspondence was received from him within the appeal period. On April 13, 1998, the RO received the veteran's request to reopen his claim for service connection for hearing loss. An August 1998 rating decision denied reopening of this claim After obtaining additional evidence, a March 1999 rating decision granted service connection for hearing loss, and a 20 percent rating was assigned effective April 13, 1998. The veteran contends that he is entitled to an earlier effective date. He argues that the denial of this claim in 1989 was erroneous because VA failed in its duty to assist him in developing the claim, VA did not consider the provisions of 38 U.S.C.A. § 1154(B), and VA failed to consider a 1989 statement signed by Dr. King. The 1989 rating decision is not subject to revision on the same factual basis except by a duly constituted appellate authority or except as provided in 38 C.F.R. § 3.105. In Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), the United States Court of Appeals for Veterans Claims (Court) set forth a three-pronged test to be used in determining whether clear and unmistakable error (CUE) is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time of the prior determination; and (3) 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. The Court has further stated that: Clear and unmistakable error 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 .... If a claimant-appellant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error ... that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a clear and unmistakable error claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on reconsideration, 6 Vet. App. 162, 163 (1994); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra), cert. denied, 528 U.S. 967, 145 L. Ed. 2d 315, 120 S. Ct. 405 (1999). Simply claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Fugo, 6 Vet. App. at 44; see also Russell, supra. Similarly, the Court has rejected as being too broad general and unspecified allegations of error based on the failure to follow regulations, failure to give due process, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of "error." See Fugo, 6 Vet. App. at 44. If a claimant wishes to reasonably raise a CUE claim, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant also must give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Id. There is a presumption of validity to otherwise final decisions, and the presumption is even stronger where the decision is being collaterally attacked as in a CUE claim. Id. As for the first argument, VA's breach of the duty to assist cannot form a basis for a claim of clear and unmistakable error. The veteran's representative has cited to the case of Hayre, which had held that an unappealed rating decision can be "non-final" where the RO's failure in the duty to assist constituted a grave procedural error. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). Hayre has, however, been overturned. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Although Hayre was valid when this effective date claim was filed, current case law, namely Cook, now applies to the veteran's appeal. See Brewer v. West, 11 Vet. App. 228, 231-33 (1998); Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Therefore, since there is no longer a basis in law for the arguments regarding failure of duty to assist in 1989, the Board will address these contentions no further. The second argument is that VA failed to consider and incorrectly applied applicable statutory provisions in effect at the time of the 1989 rating decision. Under 38 U.S.C.A. § 1154(B), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, 38 U.S.C.A. § 1154(B) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. Section 1154( does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. The 1989 rating decision denied service connection for hearing loss based on lack of service medical records showing treatment, diagnosis, or complaints of hearing loss during service. The National Personnel Records Center (NPRC) had indicated no records were found for the veteran. Of record in 1989 were documents concerning the veteran's military service, which indicated he served in Luzon and Guadalcanal. It also noted his service with a field artillery battalion. Had the VA considered these facts when adjudicating the veteran's claim in 1989, in light of the fact that his service medical records were unavailable, his service with a combat artillery battalion was sufficient to establish that he was exposed to acoustic trauma during service. The veteran's third argument is that further error was made when VA failed to consider evidence favorable to his claim. Along with his 1989 claim, the veteran submitted private medical evidence showing diagnosis of hearing loss and a "Statement of Attending Physician" signed by Austin King, M.D., indicating that the veteran had had "[d]ecreasing hearing since being in service (some type of [history] of ear infections in Pacific service)." This evidence clearly showed a current diagnosis and a nexus statement. The 1989 decision failed to consider law and regulation which, if applied properly to the facts of this case, clearly and unmistakably demonstrated that service connection was warranted for the veteran's hearing loss disorder. The law in 1989 concerning the principles of entitlement to service connection was the same as it is now. Essentially, service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. A clear and unmistakable error is "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citation omitted). If VA had considered the provisions of section 1154(, incurrence of acoustic trauma during the veteran's combat service would have been conceded (especially in light of the lack of service medical records), and if VA had further considered the private medical evidence, a then- current hearing loss disability and a relationship between that disability and service would have been acknowledged. In this case, had the RO applied the proper law and regulations and considered all evidence in evaluating the veteran's claim in 1989, there is no question that the evidence was sufficient to support a grant of service connection. All the elements needed to grant service connection were present in 1989, and the denial of the claim was clearly erroneous. Accordingly, since it has been shown that "reasonable minds could only conclude that the original decision was fatally flawed at the time it was made," Russell, 3 Vet. App. at 313, the Board finds that the September 1989 rating decision was clearly and unmistakably erroneous in denying service connection for the veteran's hearing loss. Service connection is granted for this condition as of June 26, 1989. ORDER As the September 1989 rating decision was clearly and unmistakably erroneous, service connection is hereby granted for the veteran's bilateral hearing loss as of June 26, 1989, subject to the governing regulations pertaining to the payment of monetary benefits. ____________________________________________ MILO HAWLEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Carlie passed away in November 2015 she is missed. Link to comment Share on other sites More sharing options...
Guest Berta Posted January 14, 2006 Share Posted January 14, 2006 Great research Carlie- there certainly are CUE claims at the BVA that have been granted- unfortunately we have no way of knowing how many succeed at the VARO level- This is the type of CUE that I like- a good example for anyone considering CUE because it clearly states what is and is not a CUE basis- in this case the veteran apparently listed a bunch of regs that a CUE cannot be based on but then the SMRs and his acoustical trauma MOS =once these records and the IMO were considered,this clearly supported his CUE. A lack of Duty to Assist regs being applied to the claim is not a CUE basis- but that lack of proper DTA application can lead to the actual reg they broke- beyond the DTA criteria. I think some CUE claims are denied because they aren't stated well- If you act like there are no DTA regs at all- then focus on what you have left, a faulty VA decision based on other regs they used can produce the essense of CUE. I still love that CUE from a PTSD vet I posted some time back- His actual CUE claim was very difficult for the BVA to interpret- very tangential- I say keep CUE claims short-a few paragraphs ought to do it. However the BVA did grant this PTSD vet and EED as his CUE succeeded. Consider every reg beyond DTA (Duty to Assist) and especially those diagnostic codes on your decision. The wrong diagnostic code- lending to a lower rating- when the med evidence requires a higher rating and different DC- is a basis for CUE, on a final and unappealed decision. Link to comment Share on other sites More sharing options...
carlie Posted January 16, 2006 Author Share Posted January 16, 2006 (edited) Terry, I will agree the vet can go on to BVA. I feel if I -- proceed directly to BVA my claim will jump in line for another couple of years only to get remanded back to AOJ -- VARO. Last time I checked stats on claims pending at Bay Pines there were MANY THOUSANDS, something like 28,000. So I already have plenty of fish right here in the Bay & Gulf with me. I have no idea where to go to check BVA stats -- but feel they will be just as high. It's all the luck of the draw sometimes - but me.... I love Roulette. I do thank you for all your thoughts and comments. Hope your doing the best possible with your health and all. carlie Edited January 16, 2006 by carlie Carlie passed away in November 2015 she is missed. Link to comment Share on other sites More sharing options...
Question
carlie
Citation Nr: 0506205
Decision Date: 03/04/05 Archive Date: 03/15/05
DOCKET NO. 00-13 826 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an effective date earlier than April 13, 1998,
for the grant of service connection for bilateral hearing
loss, to include the issue of whether there was clear and
unmistakable error (CUE) in the September 1989 rating
decision that previously denied this claim.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Veteran and his son
ATTORNEY FOR THE BOARD
Michelle Kane, Senior Counsel
INTRODUCTION
The veteran had active military service from February 1942 to
October 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1999 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas, which denied an effective date earlier than
April 13, 1998, for the grant of service connection for
bilateral hearing loss. Service connection was granted for
this condition in a March 1999 rating decision, and in May
1999 the veteran requested an earlier effective date.
As part of the veteran's claim that he is entitled to an
earlier effective date, he has argued that the prior denial
of the claim was erroneous. A claim of clear and
unmistakable error (CUE) is related to a claim for an earlier
effective date, and both issues are, therefore, before the
Board. See Crippen v. Brown, 9 Vet. App. 413, 420 (1996)
(appellant reasonably raised claim for CUE with the requisite
specificity because he argued for an earlier effective date
asserting that evidence compelling a grant of service
connection was of record at the time of the prior final
rating decisions), citing Dinsay v. Brown, 9 Vet. App. 79,
87-88 (1996) (claim for an earlier effective date was claim
of CUE in final RO decision disallowing claim); Flash v.
Brown, 8 Vet. App. 332, 340 (1995) (to be awarded earlier
effective date, veteran must show CUE in RO decision
disallowing higher rating). The August 2002 and August 2004
supplemental statements of the case (SSOCs) denied an
effective date earlier than April 13, 1998, for the grant of
service connection for bilateral hearing loss, to include a
finding that the September 1989 rating decision that
initially denied the claim was not clearly and unmistakably
erroneous. Accordingly, the issue on appeal has been
rephrased as shown above.
In September 2004, the veteran had a personal hearing at the
Waco RO before the undersigned Acting Veterans Law Judge.
FINDINGS OF FACT
1. The veteran's informal original claim for service
connection was received in June 1989.
2. A September 1989 rating decision denied service
connection for hearing loss, and the veteran was notified of
that decision and his appeal rights in September 1989. No
correspondence was received from him within the appeal
period.
3. The September 1989 rating decision failed to consider
applicable law and evidence favorable to the veteran's claim.
CONCLUSION OF LAW
The September 1989 rating decision denying service connection
for hearing loss was based on clear and unmistakable error,
and service connection for hearing loss is granted as of June
26, 1989. 38 U.S.C.A. § 1154(B) (West 2002); 38 C.F.R.
§§ 3.105(a), 3.303 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has reviewed all the evidence of record. Although
the Board has an obligation to provide adequate reasons and
bases supporting this decision, it is not required to discuss
each and every piece of evidence in a case. The evidence
submitted by the veteran or on his behalf is extensive and
will not be discussed in detail. Rather, the Board will
summarize the relevant evidence where appropriate.
The veteran's informal original claim for service connection
for hearing loss was received on June 26, 1989. A September
1989 rating decision denied service connection for this
condition. The veteran was notified of that decision and his
appeal rights in September 1989. No correspondence was
received from him within the appeal period.
On April 13, 1998, the RO received the veteran's request to
reopen his claim for service connection for hearing loss. An
August 1998 rating decision denied reopening of this claim
After obtaining additional evidence, a March 1999 rating
decision granted service connection for hearing loss, and a
20 percent rating was assigned effective April 13, 1998.
The veteran contends that he is entitled to an earlier
effective date. He argues that the denial of this claim in
1989 was erroneous because VA failed in its duty to assist
him in developing the claim, VA did not consider the
provisions of 38 U.S.C.A. § 1154(B), and VA failed to
consider a 1989 statement signed by Dr. King.
The 1989 rating decision is not subject to revision on the
same factual basis except by a duly constituted appellate
authority or except as provided in 38 C.F.R. § 3.105. In
Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), the
United States Court of Appeals for Veterans Claims (Court)
set forth a three-pronged test to be used in determining
whether clear and unmistakable error (CUE) is present in a
prior final determination: (1) either the correct facts, as
they were known at the time, were not before the adjudicator
or the statutory or regulatory provisions in existence at
that time were incorrectly applied; (2) the error must be
undebatable and of the sort which, had it not been made,
would have manifestly changed the outcome at the time of the
prior determination; and (3) 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. The Court has
further stated that:
Clear and unmistakable error 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 ....
If a claimant-appellant wishes to
reasonably raise clear and unmistakable
error there must be some degree of
specificity as to what the alleged error
is and, unless it is the kind of error ...
that, if true, would be clear and
unmistakable error on its face,
persuasive reasons must be given as to
why the result would have been manifestly
different but for the alleged error. It
must be remembered that there is a
presumption of validity to otherwise
final decisions, and that where such
decisions are collaterally attacked, and
a clear and unmistakable error claim is
undoubtedly a collateral attack, the
presumption is even stronger.
Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on
reconsideration, 6 Vet. App. 162, 163 (1994); see also Bustos
v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly
adopting the "manifestly changed the outcome" language in
Russell, supra), cert. denied, 528 U.S. 967, 145 L. Ed. 2d
315, 120 S. Ct. 405 (1999).
Simply claiming CUE on the basis that the previous
adjudication had improperly weighed and evaluated the
evidence can never satisfy the stringent definition of CUE.
Fugo, 6 Vet. App. at 44; see also Russell, supra. Similarly,
the Court has rejected as being too broad general and
unspecified allegations of error based on the failure to
follow regulations, failure to give due process, failure to
accord benefit of the doubt, failure of duty to assist, and
any other general, non-specific claim of "error." See
Fugo, 6 Vet. App. at 44. If a claimant wishes to reasonably
raise a CUE claim, there must be some degree of specificity
as to what the alleged error is and, unless it is the kind of
error that if true would be CUE on its face, the claimant
also must give persuasive reasons as to why the result of the
prior determination would have been manifestly different but
for the alleged error. Id. There is a presumption of
validity to otherwise final decisions, and the presumption is
even stronger where the decision is being collaterally
attacked as in a CUE claim. Id.
As for the first argument, VA's breach of the duty to assist
cannot form a basis for a claim of clear and unmistakable
error. The veteran's representative has cited to the case of
Hayre, which had held that an unappealed rating decision can
be "non-final" where the RO's failure in the duty to assist
constituted a grave procedural error. Hayre v. West,
188 F.3d 1327 (Fed. Cir. 1999). Hayre has, however, been
overturned. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir.
2002). Although Hayre was valid when this effective date
claim was filed, current case law, namely Cook, now applies
to the veteran's appeal. See Brewer v. West, 11 Vet. App.
228, 231-33 (1998); Tobler v. Derwinski, 2 Vet. App. 8, 14
(1991). Therefore, since there is no longer a basis in law
for the arguments regarding failure of duty to assist in
1989, the Board will address these contentions no further.
The second argument is that VA failed to consider and
incorrectly applied applicable statutory provisions in effect
at the time of the 1989 rating decision. Under 38 U.S.C.A. §
1154(B), a combat veteran's assertions of an event during
combat are to be presumed if consistent with the time, place
and circumstances of such service. However, 38 U.S.C.A. §
1154(B) can be used only to provide a factual basis upon
which a determination could be made that a particular disease
or injury was incurred or aggravated in service, not to link
the claimed disorder etiologically to the current disorder.
Section 1154(
does not establish service connection for a
combat veteran; it aids him by relaxing the adjudicative
evidentiary requirements for determining what happened in
service.
The 1989 rating decision denied service connection for
hearing loss based on lack of service medical records showing
treatment, diagnosis, or complaints of hearing loss during
service. The National Personnel Records Center (NPRC) had
indicated no records were found for the veteran. Of record
in 1989 were documents concerning the veteran's military
service, which indicated he served in Luzon and Guadalcanal.
It also noted his service with a field artillery battalion.
Had the VA considered these facts when adjudicating the
veteran's claim in 1989, in light of the fact that his
service medical records were unavailable, his service with a
combat artillery battalion was sufficient to establish that
he was exposed to acoustic trauma during service.
The veteran's third argument is that further error was made
when VA failed to consider evidence favorable to his claim.
Along with his 1989 claim, the veteran submitted private
medical evidence showing diagnosis of hearing loss and a
"Statement of Attending Physician" signed by Austin King,
M.D., indicating that the veteran had had "[d]ecreasing
hearing since being in service (some type of [history] of ear
infections in Pacific service)." This evidence clearly
showed a current diagnosis and a nexus statement.
The 1989 decision failed to consider law and regulation
which, if applied properly to the facts of this case, clearly
and unmistakably demonstrated that service connection was
warranted for the veteran's hearing loss disorder. The law
in 1989 concerning the principles of entitlement to service
connection was the same as it is now. Essentially, service
connection means that the facts, shown by evidence, establish
that a particular injury or disease resulting in disability
was incurred in the line of duty in the active military
service or, if pre-existing such service, was aggravated
during service. A clear and unmistakable error is
"undebatable" and the sort "which, had it not been made,
would have manifestly changed the outcome at the time it was
made." Damrel v. Brown, 6 Vet. App. 242, 245 (1994)
(citation omitted). If VA had considered the provisions of
section 1154(
, incurrence of acoustic trauma during the
veteran's combat service would have been conceded (especially
in light of the lack of service medical records), and if VA
had further considered the private medical evidence, a then-
current hearing loss disability and a relationship between
that disability and service would have been acknowledged. In
this case, had the RO applied the proper law and regulations
and considered all evidence in evaluating the veteran's claim
in 1989, there is no question that the evidence was
sufficient to support a grant of service connection. All the
elements needed to grant service connection were present in
1989, and the denial of the claim was clearly erroneous.
Accordingly, since it has been shown that "reasonable minds
could only conclude that the original decision was fatally
flawed at the time it was made," Russell, 3 Vet. App.
at 313, the Board finds that the September 1989 rating
decision was clearly and unmistakably erroneous in denying
service connection for the veteran's hearing loss. Service
connection is granted for this condition as of June 26, 1989.
ORDER
As the September 1989 rating decision was clearly and
unmistakably erroneous, service connection is hereby granted
for the veteran's bilateral hearing loss as of June 26, 1989,
subject to the governing regulations pertaining to the
payment of monetary benefits.
____________________________________________
MILO HAWLEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Carlie passed away in November 2015 she is missed.
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