Citation Nr: 0003123 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-00 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES Whether an unappealed rating decision dated September 22, 1970, which denied service connection for bilateral defective hearing involved clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran had verified service from June 1965 to September 1969. The veteran was awarded the Combat Infantryman Badge for service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which found no clear and unmistakable error (CUE) in the September 22, 1970 RO rating decision which denied service connection for bilateral defective hearing. In this regard, the Board notes that the September 22, 1970 rating decision also denied service connection for tinnitus and bilateral pes planus. The veteran did not appeal the decision; thus the decision is final. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a), (b) (1999). In December 1996, the veteran filed to reopen his service connection claim for hearing loss and tinnitus. In January 1997, through his representative, the veteran asserted that the September 22, 1970 rating decision contained CUE. In February 1998, the Decision Review Officer (DRO), following an informal conference in lieu of a formal recorded hearing previously requested, granted service connection for 1) bilateral tinnitus and assigned a noncompensable evaluation effective from September 23, 1969, the day after separation from service, based on a difference of opinion (38 C.F.R. § 3.105(b) (1999)), and a 10 percent disability evaluation effective from December 16, 1996, the date of the reopened claim; 2) bilateral pes planus and assigned a noncompensable disability evaluation effective from September 23, 1969, based on a difference of opinion (38 C.F.R. § 3.105(b)); and 3) defective right ear hearing loss and assigned a noncompensable disability evaluation effective from December 16, 1996, the date of the reopened claim, based on new and material evidence (38 C.F.R. § 3.156(a) (1999)). Further, by an October 1997 rating decision, the RO granted service connection for PTSD and assigned a 10 percent disability evaluation effective from May 1997, the date of the claim. The veteran filed a timely notice of disagreement. By rating decision dated in February 1998, the DRO, pursuant to the conversation during the informal conference, assigned a 30 percent disability evaluation for PTSD effective from May 1997. This satisfied the rating requested by the veteran in the informal conference, and as regards this rating action, the record does not contain a notice of disagreement as to the rating or the effective date assigned, and thus, such matter is not in appellate status at this time. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In light of the foregoing, the veteran's claim of clear and unmistakable error as to the September 1970 rating decision that denied service connection for bilateral tinnitus and bilateral pes planus is moot. However, because the grant of service connection for right ear hearing loss was based on new and material evidence effective from December 1996, the issue of clear error in the 1970 decision regarding bilateral hearing loss is still on appeal. Therefore, this appeal is that listed on the title page of this decision. FINDINGS OF FACT 1. By a September 22, 1970 rating decision, the RO denied service connection for defective hearing. 2. The unappealed September 22, 1970 rating decision was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. CONCLUSION OF LAW The unappealed rating decision of September 22, 1970, which denied service connection for defective hearing, does not contain clear and unmistakable error. 38 U.S.C. § 310 (U.S. Government Printing Office, 1959); Department of Veterans Benefits (DVB) Manual M21-1, paragraph 50.07 (April 30, 1970); Interim Issue 21-66-16 (June 6, 1966). 38 C.F.R. §§ 3.105(a), 3.303 (1970). REASONS AND BASES FOR FINDINGS AND CONCLUSION In connection with the current appeal, the veteran contends that the RO's rating decision of September 1970 should be found to contain clear and unmistakable error in not granting service connection for defective hearing because the medical evidence then of record established his entitlement to service connection for hearing loss. As noted above, the RO's September 1970 rating decision, which denied service connection for defective hearing loss was not appealed. 38 C.F.R. §§ 3.104, 19.118 (1970). In the absence of a finding of CUE, such a decision is final. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a) (1999). In asserting a claim of CUE, the claimant must show that: (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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). The United States Court of Appeals for Veterans Claims (Court) has further detailed that CUE is a very specific and rare kind of error of fact or law that compels the conclusion, without doubt, that but for the error, the result would have been manifestly different. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Final decisions are accorded a presumption of validity, and to simply claim CUE on the basis that a previous adjudication had improperly weighed and evaluated evidence can never rise to the stringent definition of CUE. See Luallen v. Brown, 8 Vet. App. 92, 94 (1996); Fugo, 6 Vet. App. at 44 (citing Russell, 3 Vet. App. at 314). In order to determine whether the September 1970 rating decision constituted clear and unmistakable error, the Board must review the evidence that was of record at the time of the September 22, 1970 rating decision. A determination of clear and unmistakable error must be based on the record and the law that existed at the time of the prior unappealed decision. See Eddy v. Brown, 9 Vet. App. 52, 57 (1996) (citing Russell, 3 Vet. App. at 314). According to the Department of Veterans Benefits (DVB) Manual M21-1, paragraph 50.07(a), reflects that in consideration of service connection, hearing is within normal limits where the speech recognition threshold is less than 16 decibels and the discrimination score is higher than 92 percent, and where the pure tone thresholds in the 250-500-1000-2000-4000 cycles per second range are all less than 30 decibels with at least 3 of the frequencies 15 decibels or less. See DVB Manual, M21-1 (April 30, 1970). Paragraph 50.07(b) provides that examinations in impaired hearing cases will be ordered in audiology clinics authorized by the Chief Medical Director. Id. Paragraph 50.07(c) reflects that audiometric examination conducted at facilities other than authorized Audiology and Speech Pathology Clinics will not be accepted for rating compensation claims. Id. In that regard, DVB Manual Interim Issue 21-66-16, Paragraph C., provides: g. Subparagraph (a) above defines the limits of normal hearing under the American Standards Association (ASA) values. When service connection for deafness is under consideration and an examination for hearing loss is requested, the issue of service connection for deafness should be clearly stated. This will alert the Chief of the Audiology and Speech Pathology Service to transpose International Standards Association (ISO) scores to ASA values for pure tone thresholds at 250 and 4000 cps (cycles per second) as well as at 500, 1000, and 2000 cps to determine whether normal hearing is present; the ASA scores will be reported on a VA Form 10-2464 (Summary Report for Examination for Loss of Organic Hearing Acuity). See DVB Manual Interim Issue 21-66-16 (June 6, 1966). Evidence of record at the time of the September 1970 rating decision included the veteran's service medical records. On enlistment in January 1965, there was mild scarring of the tympanic membranes bilaterally - not considered disabling. Audiometer results pertinent to the left ear on enlistment and in ASA units reflect: -5 for 500 decibels, -5 for 1000 decibels, -5 for 2000 decibels, -5 for 3000 decibels, and -5 for 4000 decibels. Results pertinent to the right ear reflect: -5 for 500 decibels, -10 for 1000 decibels, -10 for 2000 decibels, -5 for 3000 decibels and -10 for 4000 decibels. Audiometric testing of the left ear conducted in September 1969 for separation from service reflects in ASA units: 35 for 500 decibels, 35 for 1000 decibels, 30 for 2000 decibels, and 45 for 4000 decibels. Testing of the right ear reflects: 45 for 500 decibels, 40 for 1000 decibels, 45 for 2000 decibels, and 65 for 4000 decibels. Hearing acuity by spoken voice was 15/15 bilaterally. Following examination of both ears, the examiner noted that there was hearing loss. Post-service audiological examinations conducted in July 1970, 9 months following separation from service, reflect hearing in both ears at 20 feet with a diagnosis of defective hearing, partial, bilateral (high tones). The Summary Report for Examination for Loss of Organic Hearing Acuity as reported by the Chief of Audiology-Speech Pathology Clinic reflects a speech reception threshold of 8 decibels and a 94 percent discrimination ability in the left ear and 8 decibels and a 96 percent discrimination ability in the right ear. The audiometric results for the tested frequencies in ASA units were 0 for 250, 5 for 500, 5 for 1000, 5 for 2000, and 10 for 4000 in the left ear and 0 for 250, 0 for 500, 5 for 1000, 10 for 2000 and 10 for 4000 in the right ear. The Chief of Audiology-Speech Pathology Clinic noted that the hearing acuity was within normal limits, bilaterally. As noted above, the separation examination is reflective of hearing loss in accordance with the M21-1 provisions of paragraph 50.07(a) as applied to the appropriate tested frequencies. See DVB Manual M21-1 (April 30, 1970). In accordance with the law in effect at the time of the September 1970 rating decision, hearing loss had to be substantiated by testing in a VA or approved audiology clinic to warrant service connection. As reported by the VA Chief of Audiology-Speech Pathology Clinic, on a VA Form 10-2464 dated in July 1970, 9 months after the above separation examination, hearing acuity was within normal limits bilaterally, and the results of audiometric testing did not meet the criteria for a hearing loss disability. Therefore, despite the findings at service separation, defective hearing meeting the criteria for a grant of service connection was not substantiated by VA examination. Without a current disability, service connection is not warranted. See 38 C.F.R. § 3.303 (1970). At the time of the 1970 decision, the RO had before it the correct facts as they were known at the time and applied the criteria in effect at the time. Thus, the Board concludes that the RO's failure to find defective hearing due to military service at the time of the September 1970 rating decision was not an "undebatable" error. See Russell, 3 Vet. App. at 313 (defining CUE as an error that is "undebatable," in that "reasonable minds could only conclude that the original decision was fatally flawed"). As a consequence, the Board finds that the veteran has failed to establish a valid claim of CUE, and thus his claim must be denied. ORDER The unappealed rating decision of September 22, 1970, which denied entitlement to service connection for defective hearing did not contain clear and unmistakable error, and thus the veteran's appeal is denied. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals