Citation Nr: 0007898 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-02 035A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the September 17, 1985, Board decision, which denied a compensable evaluation for tinnitus. REPRESENTATION Moving Party Represented by: The American Legion ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from March 1956 to May 1961. This case comes before the Board of Veterans' Appeals (the Board) on motion by the appellant as to clear and unmistakable error in a September 17, 1985, Board decision. FINDINGS OF FACT 1. A compensable evaluation for tinnitus was denied by the Board in a September 17, 1985, decision. 2. The appellant has alleged that a compensable evaluation for tinnitus should have been granted, as he had tinnitus which was the result of acoustic trauma in service. CONCLUSION OF LAW The appellant's allegation of clear and unmistakable error in the September 17, 1985, Board decision in failing to grant a compensable evaluation for tinnitus fails to meet the threshold pleading requirements for revision of the Board decision on grounds of clear and unmistakable error. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. § 20.1404(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has argued that there was clear and unmistakable error in the September 17, 1985, Board decision, which denied a compensable evaluation for tinnitus. Specifically, the appellant argues that he was service connected for hearing loss disability and that he warranted a compensable evaluation since his tinnitus was a result of acoustic trauma in service. See 38 C.F.R. Part 4, Diagnostic Code 6260 (1984). Motions for review of prior Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411 (1999). Pursuant to Section 20.1404(b) (1999), the motion alleging clear and unmistakable error in a prior 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 why the result would have been 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. Id. Motions which fail to comply with the requirements set forth in this paragraph shall be denied. Id. Service connection for tinnitus was granted in an August 1984 rating decision as a disability "directly due to and proximately the result of" the service-connected sensorineural hearing loss. At the time of the September 1985 Board decision, the Rating Schedule provided that a compensable evaluation for tinnitus was warranted when it was persistent as a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. Part 4, Diagnostic Code 6260 (1984). The Board denied a compensable evaluation for tinnitus because "[a]lthough the veteran was exposed to noise in service, the first report of tinnitus is not until February 1984. It is the judgment of the Board that the evidence of record is insufficient to show that the veteran's current tinnitus is the result of head injury, concussion or acoustic trauma in service." After careful review of the evidence of record, the Board concludes that the appellant has not set forth specific allegations of error, either of fact or law, as to the September 17, 1985, Board decision. His allegations that he should have been given a compensable evaluation for his service-connected tinnitus because it was a result of acoustic trauma is not a specific contention of error of fact or law as to the September 1985 decision. It appears that the appellant may be making an allegation as to how the facts were weighed in the Board decision, which cannot form the basis of a clear and unmistakable error claim. See 38 C.F.R. § 20.1403(d)(3) (1999) (a disagreement as to how the facts were weighed or evaluated is an example of a situation which is not clear and unmistakable error in a Board decision). We must note that the moving party has not identified a fact that was even improperly weighed. In January 1984, an examiner recorded that there had been no tinnitus. Clearly, tinnitus due to trauma had not been diagnosed. In March 1984, Dr. Hadley noted that the veteran described increasing tinnitus. However, tinnitus due to trauma was not diagnosed. In July 1984, tinnitus aurium was diagnosed by VA, but a diagnosis due to trauma was not entered. In regard to the August 1983 document (identified by the representative), tinnitus was not noted or diagnosed. Since the 1983 document was silent for tinnitus, and other documents were silent in regard to the cause of tinnitus there was nothing to mis-weigh. Therefore, the Board finds that the appellant has not set forth any basis for findings of error or any indication as to why the results of the September 17, 1985, Board decision would have been different but for the alleged errors. Accordingly, in the absence of an allegation that sets forth clearly and specifically alleged clear and unmistakable error of fact or law in the Board decision, the legal or factual basis for such allegation, and why the results would have been manifestly different but for the alleged error, the appellant's motion for revision of the September 17, 1985, Board decision is denied. See 38 C.F.R. § 20.1404(b). ORDER The motion for revision of the September 17, 1985, Board decision on the grounds of clear and unmistakable error as to the claim for a compensable evaluation for tinnitus is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals