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Eed Cue Granted


carlie

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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(:lol: 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(:lol:, 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

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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.

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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 by carlie (see edit history)
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