BVA9504395 DOCKET NO. 92-21 610 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether a prior denial of service connection for hypertension was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from July 1941 to July 1945. The record reveals that the veteran was denied entitlement to service connection for hypertension by a rating action dated in May 1951. He subsequently attempted to reopen this claim, as well as to establish service connection for hearing loss, and in an April 1981 rating action, the RO concluded that no new and material evidence had been submitted regarding the hypertension claim and denied service connection for hearing loss. The veteran appealed both of these decisions to the Board. In a decision dated in March 1983, the Board affirmed the denial of service connection for a hearing loss and affirmed the conclusion that new and material evidence had not been submitted to reopen the veteran's claim regarding hypertension. The Board did not rule on the issue whether hypertension was incurred in service as that issue was not before the Board. In connection with his current claim, it appears that the veteran has argued, among other things, that the 1981 rating actions together with the Board's 1983 decision was clearly and unmistakably erroneous. However, pursuant to 38 C.F.R. § 20.1104, when a determination of the agency of original jurisdiction is affirmed by the Board, such determination is subsumed by the Board's decision. Moreover, the U. S. Court of Appeals for the Federal Circuit has held that the regulation pertaining to clear and unmistakable error (CUE) applies only to prior RO decisions and is not available to mount a collateral attack on a prior Board decision. Smith v. Brown, __F.3d__, No. 93-7043 (Fed. Cir. Aug. 12, 1994). Thus, the RO's 1981 decision denying service connection for a hearing loss which was subsumed in the Board's 1983 decision may not be the subject of a claim that it contained CUE. The Board's decision on that issue may be attacked only on written motion for reconsideration. Such motion was denied by the Board in September 1994. Therefore, the issue regarding defective hearing is not viable and will not be further addressed by this decision. In the VA Form 1-646, dated in November 1993, the veteran's representative appears to raise a number of additional issues. These include entitlement to service connection for incisional hernia, entitlement to service connection for adhesions, entitlement to an increased disability evaluation for residual, penetrating wound, abdomen and entitlement to an increased disability evaluation for lumbar area scar. The representative also appears to raise a claim regarding gastritis, the specific nature of which is unclear. In a statement from the veteran dated in October 1991, he appears to raise the issue of entitlement to service connection for residuals of a shrapnel wound to the left side of the forehead. These matters have not been developed on appeal and are not inextricably intertwined with the issues on appeal. Therefore, they are not properly before the Board at this time and are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his tinnitus had its onset in service and may be attributed to his exposure to combat. With respect to the claim regarding service connection for hypertension, the veteran essentially contends that the RO did not properly evaluate the evidence and failed to consider the provisions of 38 U.S.C. § 1154. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for tinnitus is not warranted. With respect to the claim regarding whether a prior denial of service connection for hypertension was clearly and unmistakably erroneous, it is the decision of the Board that the veteran has not presented a well grounded claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim for service connection for tinnitus has been obtained by the RO. 2. Chronic tinnitus was not shown in service or for many years after service. 3. The veteran has failed to reasonably raise clear and unmistakable error in the 1951 rating action in which service connection for hypertension was denied. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. § § 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b), 3.304(d) (1993). 2. The veteran has not submitted evidence of a well grounded claim with respect to the issue of whether the 1951 denial of service connection for hypertension was clearly and unmistakably erroneous; thus the Board does not have jurisdiction to adjudicate the claim. 38 U.S.C.A. § § 1101, 1110,1112, 1113, 5107 (West 1991); 38 C.F.R. § § 3.105(a), 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Tinnitus The veteran's claim for service connection for tinnitus is well grounded. It is plausible that the tinnitus he experienced in service is related to his current complaints of tinnitus. The Board is also satisfied that all relevant facts with respect to this claim have been properly developed. The record contains the veteran's service medical records and numerous post service medical records. The veteran has not contended that there are additional relevant records that could be obtained. Accordingly, no further development is necessary in order to comply with the provisions of 38 U.S.C.A. § 5107. Service connection for tinnitus may be granted if the disability was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, are service connected. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The service medical records show that the veteran was engaged in combat with the enemy during World War II and that he received shrapnel wounds in January 1944. Following this injury he was evacuated from the front lines and there is no indication that he was exposed to combat at any time after this. These records also show that the veteran did not complain of tinnitus at any time during this period of exposure to combat, nor has any evidence in the form of lay statements or medical records been submitted demonstrating complaints of tinnitus during exposure to combat. However, the records do show that while hospitalized at Walter Reed General Hospital in January 1945, the veteran complained of tinnitus after having been at a firing range. He was diagnosed as having blockage of Eustachian tubes and treatment was provided. In February 1945, the record shows that the veteran was to have his ears examined again, but the results of this examination have not been recorded. Significantly, however, the record does not show any further complaints of tinnitus and when the veteran was discharged from this hospital in March 1945, the blocked Eustachian tubes were noted to have improved. There is no subsequent record showing that the veteran complained of tinnitus in service, and no mention is made of this complaint on the report of the examination prepared at the time the veteran was discharged from service in July 1945. At that time, hearing in both ears was noted to be 15/15. The post service medical records associated with the claims file also do not show any complaints of tinnitus. In this regard, the Board observes that the reports of VA examinations dated in August 1946, February 1949, April 1951, November 1967 and August 1979, make no reference to complaints of tinnitus. In 1980, the veteran testified at a hearing conducted at the RO in connection with a claim for service connection for defective hearing. At that hearing, he stated that he went to a private physician shortly after his discharge from service and complained of humming in the ears. However, at a hearing conducted at the RO in 1982, the veteran testified that only lately did he receive treatment for his ears. The evidence in this case clearly shows that the veteran was exposed to combat during service. However, there is no evidence indicating chronic tinnitus untilmany years after service. There is no medical evidence which relates current tinnitus to military service in the 1940's. The single recorded episode of tinnitus in service occurred approximately one year after the veteran was last exposed to combat and shortly after he had been to a firing range. Significantly, this was diagnosed to be blocked Eustachian tubes and noted to have improved shortly thereafter. No complaints of tinnitus were noted at the time of the veteran's discharge from service. Moreover, no complaints of tinnitus appear on any subsequently dated medical record. Although the veteran testified in 1980, that he had a humming in the ears shortly after service and that he received medical attention for this at the time, he testified in 1982 that he did not receive any such medical care until lately. In view of the veteran's testimony and absence of medical records which reveal more than a single complaint of tinnitus in 1945, the Board concludes that the inservice complaints did not represent the onset of a chronic condition. Moreover, no medical evidence has been submitted linking current tinnitus with any incident in service. Accordingly, service connection for tinnitus is not warranted. With respect to the veteran's remaining claim, the threshold question to be answered is whether the appellant has presented a well-grounded claim. If he has not, his appeal must fail. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). We find that the claim regarding whether a prior denial of service connection for hypertension was clearly and unmistakably erroneous is not well grounded and there is, therefore, no further duty to assist him in the development of that claim. Hypertension Under applicable criteria, service connection may be granted for disability which was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131. Service connection for cardio-vascular disease including hypertension may be presumed if it became manifest to a degree of 10 percent disabling during the veteran's first year after separation from service. 38 U.S.C.A. § § 1101, 1112, 1113; 38 C.F.R. § § 3.307, 3.309. With respect to CUE review, 38 C.F.R. § 3.105(a) provides that previous determinations on which an action was predicated, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. As set forth in the Introduction of this decision, a Board decision which affirms an RO decision on appeal, subsumes that RO decision and a Board decision is not subject to a collateral attack based on CUE. 38 C.F.R. § 20.1104; Smith v. Brown, __F.3d__, No. 93-7043 (Fed. Cir. Aug. 12, 1994). In this case, the only RO action concerning service connection for hypertension not subsumed by a Board decision is the original 1951 rating action which denied service connection. Thus, the Board will presume it was this 1951 action which the veteran believes contains CUE. The United States Court of Veteran's Appeals (Court) has propounded a three pronged test to determine whether CUE was present in a prior determination: These are (1) either the correct facts, as they were known at the 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 undebatable and of 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet.App. 310 (1992). In Fugo v. Brown, 6 Vet.App. 40 (1993), the Court refined and elaborated on the test set forth in Russell. In Fugo the Court stated, ... CUE 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 CUE 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, 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 CUE claim is undoubtedly a collateral attack, the presumption is even stronger. A statement from the veteran, dated in October 1991 and received at the RO in March 1992, initiated the veteran's current appeal. In it, he stated "...it was clear and unmistakable error to disallow my claim for the above mentioned conditions." (This was in reference to defective hearing and hypertension.) He went on to state, As to the hypertension--The indication of hypertension was demonstrated in the service. At Camp Pickett, VA, a hypertensive exam indicated readings of: 180/90 (12-1-44) 180/90 (12-14-44). I claim these readings to subsequent readings of 150/100 on 2-14-49; 144/100 on 4-10-51, also, 164/118 on 4-10-51. I claim service connection for hypertension under resolution of reasonable doubt. In his notice of disagreement, the veteran stated, COVA holds that an allegation that a previously denied claim, no matter how old, was based on a clear and unmistakable error. Therefore, you must assist this veteran as you failed to provide important procedural protection in not taking into consideration 38 USC 354 (combat). ...Hypertension was demonstrated in service. These were dismissed as acute conditions. Their chronicity was indicated in service since they exist to the present time. As set forth above, to reasonably raise CUE, there must be some degree of specificity as to what the alleged error is. Merely to aver that there was CUE in a case is not sufficient to raise the issue. In this case, it cannot be determined from the veteran's contentions quoted above, what the alleged error is. In the contentions set forth in the statement which initiated the veteran's current claim and in portions of the notice of disagreement, the veteran merely restates facts which have always been available and known to the RO. He also indicated in vague terms a breach of the duty to assist and an improper evaluation of the evidence. However, the Court has clearly stated, "simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated evidence can never rise to the stringent definition of CUE." Fugo at 44. Moreover, the Court indicated that it was difficult to see how a failure in the duty to assist "could ever be CUE; but if so claimed, the claimant must state why it is CUE and present a compelling case that the result would have been manifestly different." id. at 44. The veteran has not offered any such argument, compelling or otherwise, that the results in any rating action would have been manifestly different had the duty to assist not been breached. Accordingly, the veteran's statements in this regard may not be considered to reasonably raise a claim of CUE in any prior rating action. The veteran has also indicated that the RO erred in its failure to consider the provisions of 38 U.S.C. § 354 (combat), now 38 U.S.C. § 1154. Presumably, the veteran is referring to 38 U.S.C. § 1154 (b) which provides that (b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service- connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. In this regard, the Board notes that this law was not in effect at the time of the RO's 1951 rating action and therefore, failure to consider it would obviously not be error. Under these circumstances, the Board concludes that the veteran has not reasonably raised the issue of CUE. Having failed to reasonably raise such a claim, the Board concludes that the veteran has not met the initial burden of presenting evidence of a well grounded claim imposed by 38 U.S.C.A. § 5107. In the absence of a well grounded claim, there is no duty to assist him further in the development of the claim. Grivois v. Brown, 6 Vet.App. 136 (1994). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet.App. 14 (1993). Accordingly, as claims that are not well grounded do not present a question of fact or law over which the Board has jurisdiction, the claim regarding whether a prior denial of service connection for hypertension was clearly and unmistakably erroneous, is dismissed. ORDER Service connection for tinnitus is denied. Evidence of a well grounded claim not having been submitted with respect to the issue of whether a prior denial of service connection for hypertension was clearly and unmistakably erroneous, the claim is dismissed. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.