Citation Nr: 0002291	
Decision Date: 01/28/00    Archive Date: 02/02/00

DOCKET NO.  98-00 483A	)	DATE
	)
	)


THE ISSUES

1.  Whether a December 1997 decision of the Board of 
Veterans' Appeals denying a rating greater than 10 percent 
for left ear hearing loss should be revised or reversed on 
the grounds of clear and unmistakable error.

2.  Whether a December 1997 decision of the Board of 
Veterans' Appeals denying a compensable rating for tinnitus 
should be revised or reversed on the grounds of clear and 
unmistakable error.

3.  Whether a December 1997 decision of the Board of 
Veterans' Appeals denying an application to reopen a claim 
for service connection for a nervous disorder claimed as 
secondary to service-connected left ear hearing loss, should 
be revised or reversed on the grounds of clear and 
unmistakable error.


REPRESENTATION

Moving Party Represented by:  Disabled American Veterans



ATTORNEY FOR THE BOARD

C. Hickey, Counsel

INTRODUCTION

The veteran had active service from August 1941 to December 
1943, and from September 1944 to May 1945.

On January 29, 1998, the Board received a motion requesting 
reconsideration of an December 17, 1997, decision of the 
Board that denied the veteran's claims for an increased 
rating for left ear hearing loss, and a compensable rating 
for tinnitus.  The motion was denied by the Acting Chairman 
of the Board in February 1998.  In the February 1998 denial 
the veteran was informed of recently- enacted legislation, 
Public Law No. 105-111, 111 Stat. 2271 (1997) (codified at 38 
U.S.C. § 7111) which, for the first time, granted the Board 
authority to review and revise a prior decision of the Board 
on the grounds of clear and unmistakable error (CUE).  The 
Board also advised the veteran that his motion for 
reconsideration on the basis of obvious error was also 
construed as a motion for revision of the December 1997 Board 
decision on the grounds of CUE.  Review of the CUE motion was 
deferred pending the issuance of implementing regulations.

In March 1999 the veteran was advised that final regulations 
pertaining to filing a CUE motion had been published and he 
was provided a copy thereof.  These regulations include the 
general requirements that the motion for CUE include the name 
of the veteran, the applicable VA file number, the date of 
the Board decision to which the motion relates and the issue 
or issues to which the motion pertains. 38 C.F.R. § 
20.1404(a).  At that time the Board advised the veteran that 
despite their February 1998 communication to the contrary, 
the veteran's motion for consideration would not be construed 
as a CUE motion, unless the Board was advised by the veteran 
or his representative that he wanted such consideration to be 
undertaken.  

Received in May 1999 was a second motion for reconsideration 
of the December 1997 decision which pertained to all three 
issues, to include the Board's denial of an application to 
reopen a claim for service connection for a nervous disorder 
as secondary to the service-connected left ear hearing loss, 
as well as the denial of increased rating for hearing loss 
and a compensable rating for tinnitus.  This motion also met 
the requirements of 38 C.F.R. § 20.1404(a).  In August 1999, 
the veteran was advised that this motion for reconsideration 
had been denied, but would be considered under the law 
respecting claims of clear and unmistakable error in Board 
decisions.  

In addition to the specific requirements for filing a motion 
for revision of a decision based on clear and unmistakable 
error set forth under 38 C.F.R. § 20.1404(a), there are also 
specific requirements for making allegations of clear and 
unmistakable error that are set forth under 38 C.F.R. § 
20.1404(b).  Such requirements include that "[t]he motion 
must set forth clearly and specifically the alleged clear and 
unmistakable error of fact or law in the Board decision, the 
legal or factual basis for such allegations, and 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, nonspecific allegations of error, are insufficient 
to satisfy the requirement of the previous sentence.  Motions 
which fail to comply with the requirements set forth in this 
paragraph shall be denied."

Although the May 1999 motion did not state with any degree of 
specificity the alleged clear and unmistakable error in the 
Board's December 1997 decision the veteran's representative 
did provide such specificity (as discussed in the decision 
below) in written argument in November 1999.  Accordingly, 
the requirements of 38 C.F.R. § 1404(b) are deemed to be met.



FINDINGS OF FACT

1.  On December 17, 1997, the Board of Veterans' Appeals 
denied the veteran's claims for increased rating for left ear 
hearing loss, and compensable rating for tinnitus, and denied 
his application to reopen a claim of service connection for a 
nervous condition claimed as secondary to the service-
connected left ear hearing loss.  

2.  In May 1999, a motion for revision of the December 1997 
Board decision as to all issues was filed based on clear and 
unmistakable error.

3.  The Board's 1997 decision denying the veteran's claims 
for increased rating for left ear hearing loss, compensable 
rating for tinnitus, and his application to reopen a claim of 
service connection for a nervous condition claimed as 
secondary to the service-connected left ear hearing loss, 
does not contain an error which, had it not been made, would 
have manifestly changed the outcome of any claim.


CONCLUSIONS OF LAW

1.  The criteria for revision of the Board's 1997 decision, 
which denied increased rating for left ear hearing loss, 
based on clear and unmistakable error have not been met. 38 
U.S.C. § 7111 (1999); 38 C.F.R. § 20.1403 (1999).

2.  The criteria for revision of the Board's 1997 decision, 
which denied a compensable rating for tinnitus, based on 
clear and unmistakable error have not been met. 38 U.S.C. § 
7111 (1999); 38 C.F.R. § 20.1403 (1999).

3.  The criteria for revision of the Board's 1997 decision, 
which denied an application to reopen the claim for service 
connection for a nervous disorder claimed as secondary to 
service-connected left ear hearing loss, based on clear and 
unmistakable error have not been met. 38 U.S.C. § 7111 
(1999); 38 C.F.R. § 20.1403 (1999).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

Service medical records show that, in November 1943, the 
veteran's discharge examination reported that hearing of the 
right ear was 35 feet for conversational voice and 12 feet 
for whispered voice.  Total deafness was reported for the 
left ear.  The right tympanic membrane was reported to be 
dull, fibrous and retracted.  The left tympanic membrane was 
reported to be absent.  A left mastoid scar was noted, and 
the veteran complained only of the inability to hear 
conversation with the left ear and pain in the left ear if 
exposed to cold or draught.  He was diagnosed with chronic 
bilateral otitis media and total deafness of the left ear.  
The service medical records revealed no evidence of complaint 
or treatment for nervousness.

In July 1946, a VA examination reflected the presence of a 
healed mastoidectomy scar behind the veteran's left ear lobe.  
X-ray studies reported a diagnosis of chronic, sclerotic, 
mastoiditis.  Left ear hearing was described as air 
conduction absent.  Service connection was granted by a 
rating action in July 1946 for defective hearing described as 
0/20 in the left ear, evaluated as 10 percent disabling.  
Right ear hearing was noted to be 20/20.  

In December 1948, a VA outpatient treatment record reflected 
that when the veteran had received a neuropsychiatric 
screening examination, he complained of headaches, 
irritability, excitability, lacking confidence and 
experiencing a fainting spell.  He indicated that his 
defective hearing made him uneasy.  The veteran was diagnosed 
with a psychoneurosis. 

In June 1950, a VA outpatient treatment record reflected that 
the veteran had ringing in the left ear and had a left 
mastoidectomy performed in 1933.  The presence of tinnitus 
aurium of the left ear was noted on examination.

On VA examination in September 1950, the veteran reported 
that he was nervous and tense and could not concentrate 
because of ringing in his ear.  He stated that he began to 
have ear trouble in service, that the ringing in his ear 
bothered him and that he had had an infection "a long time 
ago."  The diagnosis was anxiety reaction, minimum to 
moderate impairment.  On audiological evaluation, tinnitus 
was noted.  The veteran was diagnosed with defective hearing, 
right 20/20, left 0/20.

By a rating decision in October 1950 the RO amended the 
veteran's service-connected disability to include tinnitus 
aurium, with no additional evaluation assigned and also 
denied service connection for a nervous condition claimed as 
to the service-connected left ear disability.

A report from the Manhattan Eye, Ear and Throat Hospital 
dated in November 1950, noted the veteran had a history of 
noises and deafness of the left ear.  He was reported to have 
had a mastoid operation in 1933.  A May 10, 1950, examination 
had shown a hearing loss in the left ear of about 66 
decibels.  A subsequent report received in March 1951 
reflected that an audiogram conducted on May 10, 1950, 
revealed hearing loss in the left ear of approximately 70 
decibels.  

In August 1952, a report from the Mental Hygiene Clinic of 
the Morrisania City Hospital indicated the veteran's chief 
complaint was lack of self-confidence, difficulty in 
concentration and self-consciousness, particularly about the 
hearing defect in his left ear.  The hearing defect was noted 
to be accompanied by head noises on that side.  The veteran 
was described as having ringing in the left ear which he 
claimed had made him very nervous.

In November 1952 the RO's denial of service connection for a 
nervous disorder was confirmed and continued and the veteran 
appealed to the administrator of VA.  In support of his 
appeal the veteran testified at a personal hearing at the RO 
in February 1953.  He related that left ear deafness and 
constant ringing made him restless and nervous, finding it 
difficult to go to sleep or to relax.  He attributed his 
anxiety disorder to his service-connected disability and 
noted that due to nervousness and related inability to 
concentrate he had abandoned training in draftsmanship.  He 
avoided contact with the public in his Post Office job due to 
nervousness.  

By a decision in May 1953 the Board confirmed the denial of 
service connection for a nervous disorder claimed as 
secondary to defective hearing with tinnitus.  

On VA examination and audiological evaluation conducted in 
August 1964 the diagnosis was residuals scar of left 
mastoidectomy, defective hearing bilateral mixed type.  The 
report of a VA audiological examination conducted in October 
1969 reflects a diagnosis of right high tone hearing loss, 
left sensorineural and mixed type hearing loss and tinnitus.   

On VA examination in December 1988, the veteran was described 
as having a left post-auricular mastoidectomy scar since the 
age of ten.  He was diagnosed with bilateral mixed hearing 
loss.  Hearing loss was noted to be mild to severe in the 
right ear and severe to profound in the left ear.  Residuals 
of a mastoidectomy of the left ear were also indicated.

On VA audiological examination in January 1995, the veteran 
complained of loss of hearing since his military service in 
the 1940's.  A history of ear infection with mastoid surgery 
was noted.  On audiological evaluation, pure tone thresholds, 
in decibels, were as follows: 





HERTZ



1000
2000
3000
4000
AVG.
RIGHT
35
60
70
75
60
LEFT
95
105+
105+
105+
105+

Speech audiometry revealed speech recognition ability of 92 
percent in the right ear and 0 percent in the left ear.  The 
veteran was noted to have moderately severe sensorineural 
hearing loss of the right ear and profound mixed loss of the 
left ear.

On VA audio examination in November 1996, the veteran 
complained of bilateral hearing loss with total loss in the 
left ear, the onset of which was associated with noise 
exposure from artillery.  He reportedly had been issued 
hearing aids in the past but was unsatisfied with their 
performance.  On audiological evaluation, pure tone 
thresholds, in decibels, were as follows:





HERTZ



1000
2000
3000
4000
AVG.
RIGHT
40
55
70
75
60
LEFT
100
105+
105+
105+
103
 

Speech audiometry revealed speech recognition ability of 72 
percent in the right ear and 0 percent in the left ear.  The 
veteran was noted to have moderately severe sensorineural 
hearing loss in the right ear and profound mixed loss in the 
left ear.  

During a hearing at the RO in April 1997, the veteran 
reported that the additional loss of hearing in his right ear 
had caused him a great deal of stress and anxiety.  He stated 
that he had difficulty communicating with people, being 
unsure what was being said and asking people to repeat 
themselves, missing words in noisy places, trying to locate a 
speaker, being unable to sense the origin of sounds and 
voices.  The veteran noted that all of this had caused him to 
lose interest in participating in social functions and other 
gatherings.  He also reported that he had occasional ringing 
in his ears.  He stated the ringing caused him to have 
trouble falling asleep at night and that the hearing loss in 
the left ear did not affect his work since he was retired.  
The veteran claimed that the ringing in his ears was the 
result of his exposure to loud noises on the gunnery range.  
He stated that he had never been treated for his nervous 
problems and that a doctor had never told him his nervous 
condition was related to hearing loss.  


Legal Analysis
 
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.  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).

In general, review for clear and unmistakable error in a 
prior Board decision must be based on the record and the law 
that existed when that decision was made.  For Board 
decisions issued on or after July 21, 1992, a special rule 
provides for the inclusion of relevant documents possessed by 
VA not later than 90 days before such record was transferred 
to the Board for review in reaching that decision, provided 
that the documents could reasonably be expected to be part of 
the record. 38 C.F.R. § 20.1403(b)(1),(2).

To warrant revision of a Board decision on the grounds of 
clear and unmistakable error, 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 
clear and unmistakable. 38 C.F.R. § 20.1403(c).

The record reflects that on November 10, 1997, the veteran 
was notified that his appeal had been transferred to the 
Board.  There is no evidence or even a claim, that additional 
evidence was of record within the 90 day period prior to that 
transfer which was not associated with the claims folder.  
The veteran does not base his claim on any allegation that 
the correct facts as known at the time were not before the 
Board.  Nor does he claim that the applicable law was 
misapplied.  Rather the veteran essentially disagrees with 
the provisions of the law, claiming that his hearing loss 
should be evaluated by a different standard.  

Under applicable criteria, organic loss of hearing acuity 
shall be determined in accordance with the findings reported 
at audiological examinations.  Disability ratings for hearing 
impairment are derived by a mechanical application of the 
rating schedule to the numeric designations assigned after 
audiometric evaluations are rendered. Lendenmann v. Principi, 
3 Vet.App. 345 (1992).  Evaluations of hearing impairment 
range from noncompensable to 100 percent based on organic 
impairment of hearing acuity as measured by the results of 
controlled speech discrimination tests together with the 
average hearing threshold level as measured by pure tone 
audiometry tests in the frequencies 1,000, 2,000, 3,000, and 
4,000 Hertz.  To evaluate the degree of disability from 
hearing impairment, the rating schedule in effect at the time 
of the December 1997 Board decision, establishes eleven 
auditory acuity levels designated from Level I for 
essentially normal acuity through Level XI for profound 
deafness.  38 C.F.R. § 4.85, Diagnostic Codes 6100 to 6110 
(1997).  

In situations where service connection has been granted for 
hearing loss in only one ear, compensation is payable for the 
combination of the service-connected and the nonservice-
connected disabilities as if both disabilities were service 
connected only if there is total deafness in both ears.  
38 U.S.C.A. § 1160 (West 1991); 38 C.F.R. § 3.383(a)(3) 
(1997); VAOPGCPREC 32-97.  Otherwise, the nonservice-
connected ear is deemed normal for rating purposes.  In this 
case, service connection is in effect for hearing loss of the 
left ear only, and the veteran does not have total deafness 
in the right ear.  Accordingly, for rating purposes, the 
right ear hearing is considered Level I.  

Based on the January 1995 and November 1996 VA audiological 
evaluations, the veteran had Level XI hearing loss in the 
left ear, which, combined with the Level I hearing loss in 
the right ear, warrants a schedular rating of 10 percent for 
left ear hearing loss.  38 U.S.C.A. §§ 1155, 5107 (West 1991 
& Supp. 1997); 38 C.F.R. § 4.85, Diagnostic Code 6101 (1997).  
Therefore, entitlement to an increased evaluation for left 
ear hearing loss was not warranted by the pertinent evidence 
of record. 

The veteran urges that increased rating was warranted under 
38 C.F.R. § 3.383, which provides special consideration for 
paired organs and extremities.  Under 38 C.F.R. § 3.383, 
compensation is payable for certain specified combinations of 
service-connected and nonservice-connected disabilities as if 
both disabilities were service-connected, provided the 
nonservice-connected disability is not the result of the 
veteran's own willful misconduct.  Included in those 
specified disabilities is the circumstance in which there is 
total deafness in one ear as a result of service-connected 
disability and total deafness in the other ear as a result of  
nonservice-connected disability.  Inasmuch as the record does 
not reflect total deafness in the veteran's non service-
connected right ear, no higher evaluation was warranted in 
this instance on the basis of special consideration for 
paired organs.  

The veteran has made no other allegations of errors in fact 
or law with the Board's December 1997 denial of a higher 
rating for left ear hearing loss.  Consequently, his motion 
of clear unmistakable error with respect to this issue in the 
December 1997 Board decision must be denied.

With respect to the evaluation of tinnitus, the schedular 
criteria in effect at the time of the December 1997 Board 
decision required a showing that tinnitus, which was 
persistent as a symptom of head injury, concussion or 
acoustic trauma, for assignment of a 10 percent evaluation. 
38 C.F.R. § 4.87a, including Diagnostic Code 6260 (1997).  

The veteran's asserts that the Board erroneously found that 
his tinnitus was not persistent as a symptom of head injury, 
concussion or acoustic trauma, but rather was related to a 
left mastoidectomy he had performed prior to service in 1933.  
This argument essentially takes issue with the manner in 
which the Board's weighed the evidence of record at the time, 
which does not constitute a valid claim of clear and 
unmistakable error.  38 C.F.R. § 20.1403(d) (1999).  In the 
alternative, the veteran asserts that amended schedular 
criteria for a compensable evaluation for tinnitus, which 
became effective June 10, 1999, should be retroactively 
applied to his claim to render the December 1997 Board 
decision to be clearly and unmistakably erroneous.  The new 
criteria provide a 10 percent rating for recurrent tinnitus.  
Nevertheless, inasmuch as the clear and unmistakable error 
analysis must be based upon the statutory and regulatory 
provisions which were in effect at the time of the decision 
under review, the newly revised regulations are not for 
consideration at this time.  It is therefore concluded that 
the Board did not commit clear and unmistakable error in its 
December 1997 regarding the evaluation of tinnitus and the 
veteran's motion in that regard must be denied.   

Finally, the veteran contends that the Board erred in denying 
his application to reopen a claim for service connection for 
a nervous disorder as secondary to the service-connected left 
ear hearing loss.  In this regard a previously denied and 
final claim will be reopened if new and material evidence has 
been submitted since the last final decision on the claim.  
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 
1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 
(1996). 

Under applicable regulation:

[n]ew and material evidence means 
evidence not previously submitted to 
agency decisionmakers which bears 
directly and substantially upon the 
specific matter under consideration, 
which is neither cumulative nor 
redundant, and which by itself or in 
connection with evidence previously 
assembled is so significant that it must 
be considered in order to fairly decide 
the merits of the claim.

38 C.F.R. § 3.156(a).  See also Evans v. Brown, 9 Vet. App. 
273 (1996).  In determining whether evidence is material, 
"credibility of the evidence must be presumed."  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992). 

The basis of the veteran's challenge is that the standard 
applied by the Board in December 1997 has since been 
overturned by the United States Court of Appeals for the 
Federal Circuit (Federal Circuit).  Specifically, the 
December 1997 denial of the application to reopen, relied in 
part on the test for new and material evidence which was 
articulated by the U. S. Court of Appeals for Veterans Claims 
(Court), in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991).  
This test required that, in order to reopen a previously 
denied claim, "there must be a reasonable possibility that 
the new evidence, when viewed in the context of all the 
evidence, both new and old, would change the outcome."  
Colvin at 174. 

Subsequently, in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 
1998), the Federal Circuit concluded that in the Colvin 
decision, the Court impermissibly ignored the definition of 
"material evidence" adopted by VA (in 38 C.F.R. § 3.156) as 
a reasonable interpretation of an otherwise ambiguous 
statutory term (38 U.S.C.A. § 5108) and, without sufficient 
justification or explanation, rewrote the statute to 
incorporate the definition of materiality from an altogether 
different benefits scheme.  The decision in Hodge stressed 
that under the regulation new evidence that was not likely to 
convince the Board to alter its previous decision could be 
material if that evidence provided "a more complete picture 
of the circumstances surrounding the origin of a veteran's 
injury or disability, even where it will not eventually 
convince the Board to alter its rating decision." Hodge, at 
1363. 

In denying the veteran's application to reopen his claim in 
December 1997, the Board found that the evidence submitted 
subsequent to the 1953 Board decision was cumulative of 
evidence already on record and also that it failed to 
establish a reasonable possibility of changing the adverse 
outcome of the May 1953 decision. No error of law or fact is 
reflected in the Boars's use of the Colvin standard in 
December 1997.   In December 1997, the applicable law, as had 
been held by the Court, was the law stated in Colvin.  The 
law stated in Colvin remained the applicable law until the 
Circuit Court issued the Hodge decision in 1998.  
Accordingly, clear and unmistakable error is not reflected in 
that regard.  To the extent that the Board also found that 
the veteran's newly received evidence was cumulative of 
evidence previously of record, it is noted that the evidence 
added to the claims folder subsequent to the 1953 Board 
decision which denied service connection consists of the 
veteran's hearing testimony and his additional lay assertions 
to the effect that he had a nervous condition which was 
caused by his service-connected hearing loss.  Inasmuch as 
those contentions are substantively duplicative of evidence 
and arguments which were previously considered by the Board 
in 1953, the December 1997 decision properly concluded that 
the newly received evidence was merely cumulative evidence 
pursuant to 38 C.F.R. § 3.156 (a), and therefore did not 
constitute new and material evidence.  In view of the 
foregoing, the veteran's motion of clear unmistakable with 
respect to the December 1997 Board denial of his application 
to reopen a claim for service connection for a nervous 
disorder as secondary to left ear hearing loss, also must be 
denied.



ORDER

The motion to revise or reverse a December 1997 decision of 
the Board of Veterans' Appeals denying a rating greater than 
10 percent for left ear hearing loss on the grounds of clear 
and unmistakable error is denied.

The motion to revise or reverse a December 1997 decision of 
the Board of Veterans' 
Appeals denying a compensable rating for tinnitus on the 
grounds of clear and unmistakable error is denied.

The motion to revise or reverse a December 1997 decision of 
the Board of Veterans' 
Appeals denying an application to reopen a claim for service 
connection for a nervous disorder claimed as secondary to 
left ear hearing loss, on the grounds of clear and 
unmistakable error is denied.



		
	G. H. SHUFELT 
Member, Board of Veterans' Appeals