Unusual Cue

[Berta]

http://www4.va.gov/vetapp09/files1/0908214.txt

Citation Nr: 0908214 Decision Date: 03/05/09 Archive Date: 03/12/09 DOCKET NO. 08-37 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether there was clear and unmistakable error (CUE) in the Board's July 27, 1956, decision severing service connection for otitis externa and bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The moving party served on active duty from January 1951 to December 1952. The motion for reversal or revision of the July 27, 1956, Board decision discontinuing service connection for otitis externa and bilateral hearing loss comes before the Board of Veterans' Appeals (Board) following the receipt of a motion from the moving party on September 8, 2008, alleging CUE in the July 1956 Board decision. The Board notes that while the Board's July 1956 decision did not specifically discontinue service connection for bilateral hearing loss, the Board did discuss the moving party's hearing loss in its review of the relevant evidence and analysis. In addition, following the Board's July 1956 decision, the Department of Veterans Affairs (VA) Regional Office (RO) implemented the Board's decision by proposing to sever service connection for otitis externa and bilateral hearing loss. Therefore, the Board's July 1956 decision discontinued service connection for both otitis externa and bilateral hearing loss, and both disabilities are addressed in this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900© (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A July 27, 1956 decision of the Board found that it was CUE for a March 1956 rating board decision to reinstate entitlement to service connection for otitis externa and bilateral hearing loss. 2. The Board's July 1956 decision finding CUE in a March 1956 rating board decision contained a clear error of fact that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. CONCLUSION OF LAW The Board's July 27, 1956, decision contained CUE in finding CUE in a March 1956 rating decision reinstating entitlement to service connection for otitis externa and bilateral hearing loss. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). The VCAA, however, does not apply to CUE motions in previous Board decisions. 38 U.S.C.A. §§ 5109A, 7111(a) (West 2002); 38 C.F.R. §§ 3.105(a), 20.1400-20.1411 (2008); Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Under 38 U.S.C.A. § 7111, the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE. A claim requesting review under this statute may be filed at any time after the underlying decision is made. Pursuant to an opinion of the VA General Counsel, VAOPGCPREC 1-98, the Board's authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997. See 38 C.F.R. § 20.1400. The moving party's motion for review or revision was filed with the Board in September 2008. A motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party, if other than the veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to re-filing under this subpart. 38 C.F.R. § 20.1404(a). The motion claiming CUE in a Board decision must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and an explanation of why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. 38 C.F.R. § 20.1304(;). Motions which fail to comply with these requirements shall be dismissed without prejudice to re- filing under this subpart. Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); 38 C.F.R. § 20.1404(<_<. In the implementing regulation, CUE is defined as: A very specific and rare kind of error, of fact or 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). The record to be reviewed for CUE in a prior Board decision must be based on the record and the law that existed when that decision was issued. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be deemed clear and unmistakable. 38 C.F.R. § 20.1403©. For CUE to exist, (1) "[e]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebateable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," 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. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). In other cases prior to promulgation of this regulation, the Court has defined CUE as "an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebateable, so that it can be said 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. "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In September 2008, the Board accepted a statement from the moving party as a motion alleging CUE in a July 27, 1956, Board decision finding CUE in the establishment of service connection for otitis externa and bilateral hearing loss. The moving party's September 2008 pleading meets the general requirements for filing a motion for revision under 38 C.F.R. § 20.1404(a) and § 20.1404(:). As mentioned above, when determining whether there was CUE in the July 27, 1956, decision, the Board must review the evidence of record at the time of the Board decision. The moving party was granted service connection for otitis externa and bilateral defective hearing in an April 1953 rating decision with initial noncompensable and 10 percent evaluations assigned, respectively, both effective December 19, 1952. The RO noted that defective hearing and a right mastoidectomy scar were noted on the moving party's October 1950 service enlistment examination. In addition, a March 1953 VA examiner noted that the moving party's ear canals were moist on examination and diagnosed bilateral external otitis and hearing loss. While the basis for service connection is unclear, it appears the RO found that the moving party's defective hearing was aggravated during service and that chronic otitis externa was incurred as a result of active duty service. In September 1955, the RO reduced the moving party's disability evaluation and discontinued his compensation based on a July 1955 VA audiological examination and audiogram that diagnosed bilateral hightone deafness, otits media, and otitis externa. This action was taken under the provisions of VAR 1009(E) pertaining to reductions in evaluations. In a March 1956 decision, the rating board determined that service connection for otitis externa and bilateral deafness was proper, as service connection based on aggravation was supported by the record. The rating board noted that the evidence indicated that the moving party's in-service acute pharyngitis and tonsil infection caused a recurrence of his pre-existing ear disability. The legal member of the rating board wrote a dissenting opinion to the March 1956 decision, arguing that the moving party's pre-existing ear condition required a mastoidectomy and was therefore of sufficient severity to establish chronicity. The symptoms during service were therefore similar recurrences of the pre-existing chronic disability and did not establish aggravation. The decision restored the 10 percent evaluation for otitis externa. In a letter, dated April 1956, and received in May 1956, the veteran's private physician stated that he had treated the moving party in March and April 1950, prior to induction, for acute otitis media and provided a mastoidectomy to repair a perforated eardrum. The moving party made a complete and uneventful recovery from the procedure and there was no further evidence of ear disease prior to his induction into active duty service. The doctor definitively stated that prior to entering the military, the moving party's otitis media and mastoiditis were acute and not chronic in character. The March 1956 rating board decision was administratively appealed to the Board. In a July 1956 decision, the Board described the issues as entitlement to continuation of service connection for otitis media and otititis externa. The Board determined that it was CUE for the rating board to have granted service connection for these conditions. The Board found that otitis externa clearly and unmistakable existed prior to the moving party's enlistment in active duty service, and the repeated episodes of otitis externa and otitis media during service differed in no manner from the symptoms prior to service. The moving party's hearing was normal at discharge and chronic otitis externa and otitis media were not aggravated by service. The September 1955 rating decision had not severed but only reduced the evaluation for otititis media and externa, the March 1956 decision only had the effect of restoring compensation for that disability. The rating board member who sought Board review was not a member of the panel that originally granted service connection. Hence, it is unclear whether the Board had jurisdiction to review the propriety of the original grant. Because the Board finds CUE in the Board's decsions to sever service connection, the current decision need not decide this question. The moving party contends that the Board's July 1956 decision contains CUE as it was based on a clear error of fact. The evidence before the Board at the time of the July 1956 decision included the moving party's service treatment records, reports of VA audiological examinations conducted in March 1953 and July 1955, and several letters from the moving party's private doctor. The law at the time of the Board's July 1956 decision provided that a rating board or other adjudicative agency could reverse or amend a decision when such reversal or amendment was warranted by clear and unmistakable evidence shown by the evidence of record at the time the prior decision was rendered. VAR 1009(A) (September 14, 1953). With respect to severance of service connection, the evidence that may be considered in determining whether the grant was CUE, the evidence to be considered includes that created or received since the grant. Daniels v. Gober, 10 Vet. App. 474, 480 (1997); Venturella v. Gober, 10 Vet. App. 340, 342- 43 (1997). Because the current version of 38 C.F.R. § 3.105(d) specifically contemplates that a change in diagnosis or change in law or interpretation of law may be accepted as a basis for severance, the regulation contemplates the consideration of evidence acquired after the original grant of service connection. Venturella, supra. VA regulations at the time of the July 1956 Board decision provided that service connection could be severed based on a change of diagnosis as long as an examining physician or other proper medical authority certified, in light of all accumulated evidence, that a prior diagnosis was not correct. VAR 1009(D) (September 14, 1953). VAR 1009(D) allowed for severance of service connection based on CUE in the original grant, including on the basis of a change in diagnosis, as long as a medical authority certified that the prior diagnosis was incorrect. Therefore, the law in effect at the time of the July 1956 Board decision also contemplated the consideration of evidence acquired after the original grant of service connection. Accordingly, the Board was not limited only to review of the evidence of record at the time of the March 1956 rating board decision, and should have considered all the evidence of record. The Board's July 1956 decision contains no indication of consideration of the April 1956 letter from the moving party's private physician. While it found that the symptoms prior to service were the same as those found in service. The Board cited no evidence for this proposition, and all the evidence of record at the time of its decision was that the disability had been quiescent btween the 1950 surgery and the in-service treatment beginning in January 1951. In addition, as pointed out by the veteran's representative, the Board erroneously stated that there was no evidence of hearing loss at service separation. No audiolometric testing was apparently conducted at the time of the veteran's entrance into service, but the examination for service separation showed a 60 decibel loss in the right ear at 4000 Hertz. The failure of the July 1956 Board decision to consider the April 1956 letter from the moving party's physician manifestly changed the outcome that would have resulted had the correct facts been before the Board. The Board's determination of CUE in the March 1956 rating board decision was predicated on a finding that the moving party's chronic otitis externa and hearing loss had clearly and unmistakably pre-existed service. This determination was based on the notation of defective hearing and a mastoidectomy scar on the moving party's October 1950 enlistment examination. The Board concluded that since the moving party's pre-existing conditions had been chronic prior to service, the in-service recurrences of symptoms were merely a continuation of the ongoing disease and were not evidence of aggravation. However, the April 1956 letter from the moving party's private physician states that the moving party's pre-existing otitis externa and mastoiditis were merely acute conditions, definitively not chronic in nature, and fully resolved prior to his enlistment into active service. The failure of the Board to consider this evidence was an outcome determinative error, as it was the only medical evidence pertaining to the chronicity and severity of the pre-existing ear conditions and established that the moving party's previous ear problems had been acute in nature. In the context of the April 1956 letter, the mastoidectomy scar noted at enlistment and the moving party's statements during service that he had been previously treated for an external ear skin irritation and mastoidectomy in 1950 would not have been enough to clearly and unmistakably establish a pre-existing chronic condition. As the only medical evidence of record pertaining to the chronicity of the moving party's ear conditions was against the presence of chronic pre-existing disabilities, the Board would have had to conclude that the diagnoses of chronic otitis externa and otitis media during active duty service established aggravation of the previously acute problems. Therefore, if the April 1956 letter had been considered by the Board at the time of its July 1956 decision, the outcome of the decision would have been manifestly different. The evidence would have shown that the moving party's ear conditions had been acute prior to service, and the recurrent symptoms and diagnoses of chronic otitis media and otits externa during service would have established aggravation. The Board would have been unable to find CUE in the rating board's March 1956 decision and service connection would not have been severed. The Board's July 1956 decision was therefore CUE as the correct facts as they were known at that time were not before the Board and the failure to consider these facts was outcome determinative. The Board's decision, therefore, is clearly and unmistakably erroneous and the decision must be revised. 38 C.F.R. § 20.1403© (2008). ORDER The Board's July 1956 decision severing service connection for otitis media and otitis externa was CUE. To this extent, the appeal is allowed. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

[cowgirl]

In a quick review of this post, it looks like recorded evidence was key factor to success. Hence my apolgies to tree's, paper records are not a thing of the past yet and these archives have value. Future data files on disk only? hm....school photographer said best way to preserve photos and documents without minimal air or exposure to elements, archival plastic sleeves (I use document protectors and cardboard boxes).

[carlie]

Berta,

Thanks for posting this most interesting C&UE claim.

I see the meat of this C&UE in this specific part.

carlie

The failure of the July 1956 Board decision to consider the

April 1956 letter from the moving party's physician

manifestly changed the outcome that would have resulted had

the correct facts been before the Board. The Board's

determination of CUE in the March 1956 rating board decision

was predicated on a finding that the moving party's chronic

otitis externa and hearing loss had clearly and unmistakably

pre-existed service. This determination was based on the

notation of defective hearing and a mastoidectomy scar on the

moving party's October 1950 enlistment examination. The

Board concluded that since the moving party's pre-existing

conditions had been chronic prior to service, the in-service

recurrences of symptoms were merely a continuation of the

ongoing disease and were not evidence of aggravation.

However, the April 1956 letter from the moving party's

private physician states that the moving party's pre-existing

otitis externa and mastoiditis were merely acute conditions,

definitively not chronic in nature, and fully resolved prior

to his enlistment into active service. The failure of the

Board to consider this evidence was an outcome determinative

error, as it was the only medical evidence pertaining to the

chronicity and severity of the pre-existing ear conditions

and established that the moving party's previous ear problems

had been acute in nature.

In the context of the April 1956 letter, the mastoidectomy

scar noted at enlistment and the moving party's statements

during service that he had been previously treated for an

external ear skin irritation and mastoidectomy in 1950 would

not have been enough to clearly and unmistakably establish a

pre-existing chronic condition.

As the only medical evidence of record pertaining to the

chronicity of the moving party's ear conditions was against

the presence of chronic pre-existing disabilities, the Board

would have had to conclude that the diagnoses of chronic

otitis externa and otitis media during active duty service

established aggravation of the previously acute problems.

Therefore, if the April 1956 letter had been considered by

the Board at the time of its July 1956 decision, the outcome

of the decision would have been manifestly different. The

evidence would have shown that the moving party's ear

conditions had been acute prior to service, and the recurrent

symptoms and diagnoses of chronic otitis media and otits

externa during service would have established aggravation.

The Board would have been unable to find CUE in the rating

board's March 1956 decision and service connection would not

have been severed.

The Board's July 1956 decision was therefore CUE as the

correct facts as they were known at that time were not before

the Board and the failure to consider these facts was outcome

determinative. The Board's decision, therefore, is clearly

and unmistakably erroneous and the decision must be revised.

38 C.F.R. § 20.1403© (2008).

[Vync]

With that EED, imagine the back payment he will receive. This Veteran is probably about 80 years old now. I hope he lives comfortably for 20 more years and is able to enjoy it. That's persistence. You have to respect that.