Citation Nr: 1301809	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  05-14 117	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for a right knee disability.  

2.  Entitlement to a disability rating in excess of 50 percent for a bilateral hearing loss.  

3.  Entitlement to an effective date earlier than April 11, 2008 for a 50 percent rating for the Veteran's bilateral hearing loss.   


REPRESENTATION

Appellant represented by:	John F. Cameron, Attorney at Law


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

C. R. Olson, Counsel


INTRODUCTION

The Veteran served on active duty from December 1943 to January 1946.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

On December 5, 2005, the Veteran and his wife appeared at a hearing and gave sworn testimony before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002).  The issues were fully explained and the evidence discussed, including the possible submission of additional evidence.  The transcript of the hearing is in the claims folder.  

In February 2006, the Board denied service connection for a right knee disability.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In March 2007, pursuant to a Joint Motion for Remand (JMR) the Court vacated the February 2006 Board decision and remanded the matter for compliance with directives specified in the JMR.  

In December 2007, the Board remanded the case to the RO for further evidentiary development.  Following the requested development, a supplemental statement of the case (SSOC) was issued in August 2008.  

In December 2008, the Board once again denied the claim for service connection for a right knee disability.  The Veteran again appealed the Board's decision to the Court.  In a Memorandum Decision of July 2010, the Court vacated the Board's decision and remanded the matter, pursuant to its Memorandum Decision.  A copy of the Court's Memorandum Decision in this matter has been placed in the claims file.  

In April 2011, pursuant to the Court's decision, the Board remanded the right knee claim for VA clinical records, examination of the Veteran, a medical opinion and readjudication.  Additional VA clinical records were received.  The Veteran was examined in November 2011 and a medical opinion was rendered.  The claim was readjudicated with a supplemental statement of the case in February 2012.  In as much as the development requested by the Court and Board has been substantially completed, the Board proceeds with it review of the appeal.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

In August 2008, the RO increased the evaluation of the service-connected hearing loss from 40 percent to 50 percent, effective April 11, 2008.  The Veteran, through his attorney, subsequently perfected appeals of the rating and the effective date.   

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The separation examination noted a right knee scar and the recent VA examination also noted a right knee scar, although the Veteran had intervening injury and surgery.  The issue of entitlement to service connection for a right knee scar has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  The Veteran did not have degenerative joint disease or arthritis or septic arthritis in his right knee during service.  

2.  There is no evidence that right knee arthritis developed within one year of the Veteran's discharge from service.  

3.  There is no medical nexus between the inservice episode of right leg cellulitis and degenerative joint disease which developed many years after service.  

4.  The Veteran's right knee disability is not the result of disease or injury incurred or aggravated during his active service.  

5.  The Veteran's service-connected bilateral hearing loss is manifested by a pure tone threshold average of 80 decibels with discrimination ability of 52 percent (numeric designation VIII) on the right and a pure tone threshold average of 81 decibels with discrimination ability of 36 percent (numeric designation IX) on the left.  

6.  The Veteran's claim for an increased rating for his service-connected bilateral hearing loss was received on October 17, 2007.  There is no competent evidence of an increase in disability prior to that date.  There is no evidence of any correspondence, medical records, or anything else that could be construed as a claim prior to that date.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a right knee disability have not been met.  38 U.S.C.A. §§ 101(16), 1101, 1110, 1112  (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  

2.  The criteria for a disability rating in excess of 50 percent for a bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Code 6100 (2012).  

3.  The criteria for an effective date of October 17, 2007, and no earlier, for a 50 percent rating for the Veteran's bilateral hearing loss have been met.  38 U.S.C.A. § 1155, 5110(a) (West 2002); 38 C.F.R. § 3.400(o) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) and subsequent legislation, VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

In letters dated in July 2002 for the right knee claim and April 2008 for the hearing loss claim, the RO provided the Veteran with explanations of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002.)  The notice letters were provided before the adjudication of the right knee claim in March 2003 and the adjudication of the hearing loss in August 2008.  The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The April 2008 letter also provided notice regarding potential ratings and effective dates.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The July 2002 notice letter was issued before the Court's decision in Dingess.  Nevertheless, the Veteran was not prejudiced because the claim for service connection for the right knee is being denied and neither a rating nor and effective date will be assigned.  Moreover, the Veteran is represented by competent private counsel who has demonstrated his knowledge regarding ratings and effective dates.  

The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service medical records have been obtained.  His available post-service treatment records have also been obtained.  He has also been afforded a hearing.  The Veteran has had VA examinations and medical opinions have been obtained.  It must be emphasized that the Veteran's right knee, the one injured in service and the one recently found to have arthritis was removed and replaced with a prosthesis.  See Report of Operation, dated April 27, 2004.  Consequently, further examination would not provide evidence as to the arthritis of the knee.  There is no indication that the knee bones were retained or that there is any additional evidence as to the arthritic changes that required the replacement.   

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Service Connection

In order to establish service connection, three elements must be established.  There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38 C.F.R. § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b) (2012).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

Arthritis may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent or more within the first year following active service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  In this case, there is no competent evidence of any type of arthritis during the first year after the Veteran completed his active service.  

Background

The Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Consequently, the following discussion will be limited to the evidence the Board finds to be relevant.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board specifically finds that any evidence not discussed does not support the claims.   

In this context, the Board notes that the Veteran has multiple health issues.  It is not contended nor does the evidence show that these are related to his right knee or hearing loss, so they will not be discussed in detail.  Also, the Veteran's attorney has submitted several treatises.  These include Harvard Men's Health Watch, Vol. 10, No. 7, February 2006, Osteoarthritis: Causes and Diagnosis; History and current status of osteoarthritis in the population, W. Watson Buchanan, et al., Inflammopharmacology, Vol. 11, No. 4-6, pp. 301-316 (2003); Septic Arthritis Surgery, Gabriel Munoz, et al., eMedicine Updated July 14, 2009; and, Septic Arthritis in the Elderly, Catherine J. Mathews, Aging Health.  None of these contain information that is sufficiently specific to link the knee symptoms in service to the arthritis that required a knee replacement in 2004.  Therefore, they will not be discussed further.  However, it must be noted that two treatises, Septic Arthritis Surgery and Septic Arthritis in the Elderly describe symptoms that are significantly different from those described by the surgeon who removed the Veteran's right knee joint in 2004.  That is, they provide evidence that the Veteran did not have the septic form of arthritis.  

Review of the Veteran's service medical records reflect that he fell and cut his right leg in February 1944.  He then went home for several weeks of leave, where the leg and knee became seriously infected and he sought treatment from a local physician.  (The Veteran and the VA have attempted to obtain records of this treatment, but the physician is deceased and no records could be obtained.)  Upon his return to service, his right leg had become infected and swollen to the extent that he was transferred to a naval hospital where he stayed for five months, from April 1944 through August 1944.  An X-ray study conducted in April 1944 was interpreted as showing no evidence of bony pathology.  

Upon the Veteran's discharge from service, the report of his separation medical examination shows that his bones and joints were considered to have been normal and he was deemed physically qualified for discharge from the naval service.  

There is no evidence, and the Veteran does not contend, that he has ever suffered a recurrence of cellulitis in his right leg.  

There is no documentary medical evidence available for review reflecting the Veteran's medical condition following his discharge from service until the year 2000.  Despite the Veteran's attempts and the VA's attempts to obtain records reflecting his physical condition during these fifty years, records were unavailable due to his physicians' retirements and the disposal of their records.  During the December 2005 hearing on appeal, however, the Veteran testified that his right knee had caused him pain and difficulty ever since the injury in service.  His wife corroborated his testimony, stating that as long as she has known him, he has had pain and difficulty with his right knee.  The Board notes that as lay witnesses, the Veteran and his wife are competent to report knee symptoms, although they do not have the medical training and experience to diagnose the cause.  38 C.F.R. § 3.159(a) (2012).  

A private physician's notes, dated in October 2001, list numerous complaints including pain in the knees.  It was noted that the Veteran had a knee injury in service.  A private X-ray study, dated in August 2002, reports degenerative joint disease of the knees with cartilage tear.  The Veteran returned to the office of his private physician, A. E. J., M.D., in November 2002 for a recheck of his knees.  Examination showed the knees had a fairly good range of motion.  He had a grossly normal neurovascular examination of both lower extremities.  (This is significant because it is not consistent with the description of septic arthritis in the treatises.)  An X-ray study was done and read as showing degenerative arthritis of the right and left knees.  

Private medical records show both of the Veteran's knees hurt after being injured in a motor vehicle accident in May 2003.  The assessment was osteoarthritis of the knee.  A note dated in June 2003 shows the right knee still hurt.  The right knee still showed effusion and some tenderness.  There was no redness and the joint was stable.  The assessment was trauma to the right knee.  The July 2003 note shows lower extremity complaints.  There were osteoarthritic changes in the knees.  The Veteran returned for follow-up in August 2003, stating that his knees still hurt and were worse.   He was wondering if it was due to arthritis as well as the accident.  The doctor found no increase in swelling and no discoloration.  It hurt his knees to walk.  Examination showed a small amount of effusion, worse on the left than on the right.  The assessment was probable osteoarthritis of the left knee.  Notes for October and November 2003 show the Veteran's knees were responding to injections.  

A private clinical note, dated in February 2004, shows the Veteran reported both knees hurt worse.  He also reported the right knee gave way secondary to pain.  He was noted to be limping.  It was reported that he had falls secondary to knee pain.   It was noted that his knees were injured in an accident in May 2003 and his knees were worse since.  Both knees were tender with mild effusion and crepitus.  The assessment was degenerative joint disease/osteoarthritis of both knees.   

Private hospital records show the Veteran was admitted in April 2004.  The physician wrote that the Veteran had been followed for problems with his right knee for some time.  He continued to have pain and discomfort which failed to resolve.  He was admitted for a total knee arthroplasty.  The operative report shows pre-operative and post-operative diagnoses of osteoarthritis, right knee.  A right total knee replacement was done.  

In December 2005, the Veteran and his wife testified before the undersigned at a hearing held at the RO.  The Veteran described his injury and treatment in service.  He said that after service his knee seemed to do pretty well for a long time.  There were times when he had a little pain in his knee.  Sometimes when he worked and picked up something heavy, he would have knee pain.  It was years after he got out of service that he saw a doctor for it.  The Veteran's wife testified that he did not start going to a doctor until 2000 or 2001.  She said his knee would swell up, he would limp, and complain about the pain.  He started going to doctors but the pain became worse and he had to have knee surgery.  

In February 2008, the Veteran was afforded a VA examination.  In its July 2010 memorandum decision, the Court found that this examination resulted in two diametrically opposed opinions without adequate explanation and that it was error for the Board to rely on the examination report and opinions in reaching its decision.  

Pursuant to the Court's July 2010 decision, the case was remanded by the Board and another examination and medical opinion obtained.  The Veteran was examined in November 2011.  The claims folder was reviewed.  The diagnosis was knee arthritis.  The injury in service was reviewed.  It was noted that while training in 1944, the Veteran fell and hit his right knee, causing a break in the skin.  He was treated by a private physician and was non-weight bearing on crutches.  Upon his return to duty, he was found to have a superimposed infection, cellulitis.  He was admitted and treated for a few months with antibiotics, as well as incision and drainage of superficial tissue.  He recovered and went back to his regular duties.  When he left service, he had a residual scar.  He then had decades of not seeking any treatment for his knees after service.  Since service, the right and left knee progressed.  The doctor noted that the Veteran worked in a physical occupation for 25 years.  It was not until the 2000's that he sought care for his knee symptoms.  He was found to have bilateral knee arthritis in the early 2000's.  He also had a motor vehicle accident in 2003, although he reported no knee issues from that.  He had a total right knee replacement in April 2004 and a total left knee replacement in 2005.  The knees were examined and the range of motion measured.  Functional impairments included less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting and standing.  The surgery residuals included chronic residuals consisting of severe painful motion or weakness.  The Veteran was noted to have a residual scar, less than 6 square inches in area.  It was noted that the knee disabilities would impact the Veteran's work.  

The examiner expressed the opinion that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury.  The examiner explained that the service treatment records were very clear about the knee condition in service.  The Veteran had right knee cellulitis.  The description of the condition and treatment for it confirmed that was his condition.  The doctor further explained that cellulitis is an infection of the skin and dermis.  The Veteran was treated for that with incision and drainage of the infected superficial tissues and also with antibiotics.  There is no medical evidence that any ligaments of the knee joint itself were involved in the infection.  Even in the 1940's there was the ability to diagnose and treat septic arthritis or cartilage damage.  There is no evidence that either condition was involved at the time of the Veteran's cellulitis treatment.  Further, he went back to full duty after treatment.  If the problem in service had been anything but cellulitis, that would not have occurred due to the fact that he was only treated for cellulitis.  It would have been obvious if there had been untreated septic arthritis or cartilage damage.  He would not have been able to return to full duty.  Also, after service, he worked for at least 25 years in a very physically demanding job with prolonged standing and walking.  It was not until 50 years after service that his knee arthritis was diagnosed; and, by that time he was in his 70's.  His current right and left knee conditions were most likely due to aging and the nature of his post service occupation.  

Conclusion

The claim is supported by the documentation of an injury in service and the Veteran's report of continuing post service symptoms.  There is no competent medical evidence connecting the current disability to the injury in service.  The treatises submitted on behalf of the Veteran are too general to link his current disability to his injury in service.  The evidence against the claim consists of the documentation during service as to the nature of the injury and its treatment, as well as the separation examination report.  While post service medical documentation is not a requirement, evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  In this case, over 50 years passed before the Veteran sought medical help for his knees.  Moreover, the only competent medical opinion is against the claim.  The reasoning is set forth above and will not be repeated; however, the Board notes that there were several reasons that very strongly supported the conclusion that the current disability was not related to the injury in service.  Thus, the Board finds that the recent examination combines with the recent private medical records, the service treatment records, and the long absence of medical treatment to result in a preponderance of evidence against the claim.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  

Hearing Loss

Evaluations of bilateral defective hearing 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 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Code 6100 (2012).  The Court has noted that the assignment of disability ratings for hearing impairment are derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

It must be noted that hearing tests for rating purposes are done without hearing aids.  38 C.F.R. § 4.85(a) (2012).  Consequently, the use of hearing aids is not a factor in evaluating the service-connected hearing loss.  Therefore, the several notes pertaining to the issuance of hearing aids and their maintenance need not be discussed.  

The record contains several private audiometric examinations for 2001, 2002, and 2003, which do not contain findings at 3000 Hertz and are not adequate for rating purposes.  

On the authorized VA audiological evaluation, in July 2003, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
Right
60
75
80
80
74
Left
60
70
80
75
71

Speech audiometry revealed speech recognition ability of 64 percent correct in the right ear and 52 percent correct in the left ear.  These audiologic results produce a numeric designation of "VII" for the right ear and "VIII" for the left ear.  When this numeric designation is applied to the rating criteria, the result is a 40 percent rating.  38 C.F.R. Part 4, including § 4.85, and Code 6100 (2012).  

A VA audiometric examination conducted in September 2007 was not adequate for rating purposes because it lacked findings at 3000 Hertz.  

A private audiometric examination in October 2007 showed pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
Right
70
75
75
80
75
Left
60
70
70
80
70

Speech audiometry revealed speech recognition ability of 76 percent correct in the right ear and 64 percent correct in the left ear.  These audiologic results produce a numeric designation of "V" for the right ear and "VI" for the left ear.  When this numeric designation is applied to the rating criteria, the result is a 20 percent rating.  38 C.F.R. Part 4, including § 4.85, and Code 6100 (2012).  

On the authorized VA audiological evaluation, in June 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
Right
65
80
85
90
80
Left
70
80
85
90
81

Speech audiometry revealed speech recognition ability of 52 percent correct in the right ear and 36 percent correct in the left ear.  These audiologic results produce a numeric designation of "VIII" for the right ear and "IX" for the left ear.  When this numeric designation is applied to the rating criteria, the result is a 50 percent rating.  38 C.F.R. Part 4, including § 4.85, and Code 6100 (2012).  

Conclusion

As noted above, the rating is arrived at by the mechanical application of the audiometric test results to the rating criteria.  Although the Veteran is competent to report that he is worse, the Court has recognized that the most probative evidence, and the evidence that serves as the basis of the evaluation, is that which is obtained from the controlled audiometric environment.  In this case, all of the audiometric tests, both VA and private, show that at no time has the service-connected hearing loss exceeded the criteria for a 50 percent.  The audiometric findings provide a clear preponderance of evidence against the claim.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied.  38 U.S.C.A. § 5107(b); Gilbert; Ortiz.  

The Board has considered the issues raised by the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007) and whether staged ratings should be assigned.  We conclude that at no time during the rating period has the disability exceeded the criteria for a 50 percent rating.  Therefore, uniform rating is appropriate in this case.  

Effective Date

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C.A. § 5110(a).  Specifically provided otherwise is that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C.A. § 5110(b)(2).  

The implementing regulation provides that except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.  

A specific subsection addresses increased rating claims, providing that, in general, increases are assigned an effective date of the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  The effective date of an increase will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2).  

Under 38 C.F.R. § 3.155, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant may be considered an informal claim.  Such informal claim must identify the benefit sought.  

Under 38 C.F.R. § 3.157, the date of VA outpatient examination will be accepted as the date of receipt of the claim, but only when such report relates to an examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such treatment.  See Servello v. Derwinski, 3 Vet. App. 196, 200 (1992)(concluding that the Veteran submitted an informal claim for individual unemployability within the purview of 38 C.F.R. §§ 3.155, 3.157).  

Background

The Board has reviewed the file to see if we could find any basis for an earlier date.  

The August 2008 rating decision granted a 50 percent rating effective April 11, 2008.  It asserted that was the date that the claim was received.  Review of the file discloses a letter from the Veteran's attorney dated October 26, 2007 but date stamped received by VA on April 11, 2008.  It says that the Veteran desired to file a claim for an increased rating for his bilateral hearing loss.  It noted private and VA treatment.  The RO accepted the April 11, 2008 VA date stamp as the date the claim was received and assigned that as the effective date.  

However, further review of the file reveals a letter from the Veteran's attorney, dated October 16, 2007, and date stamped received by VA on October 17, 2007.  It asserted that the Veteran was entitled to an increased rating for his service-connected hearing loss.  This wording clearly constitutes a claim for increase.  In as much as the claim was received on October 17, 2007, that should be the effective date of the increase.  

The Board has carefully reviewed the remaining file and does not find anything earlier than October 17, 2007 that could be construed as a claim for increase.  In particular, there was an audiometric examination in September 2007 in conjunction with a hearing aid examination.  The findings are not adequate for rating purposes because hearing at 3000 Hertz was not reported.  If the findings at the other frequencies, 1000, 2000, and 4000 Hertz are averaged the result would be 72 for the right ear and 73 for the left ear.  Speech reception thresholds were 65 in each ear.  These audiologic results produce a numeric designation of "VII" for the right ear and "VII" for the left ear.  When these numeric designations are applied to the rating criteria, the result is a 40 percent rating.  38 C.F.R. Part 4, including § 4.85, and Code 6100 (2012).  Thus, the findings in September 2007 do not indicate a rating in excess of the 40 percent then in effect.  

There were also VA and private reports relating to the Veteran's hearing aids, but the rating is not based on the use of hearing aids, so simple maintenance of hearing aids does not constitute a claim for a higher rating.  

Conclusion

The Veteran's attorney did not specifically identify an earlier effective date.  The Board has reviewed the record and finds that a letter from the Veteran's attorney, received on October 17, 2007 constitutes an earlier claim.  Thus, that is the appropriate effective date.  The Board does not find any earlier correspondence or medical records that could reasonably be construed as an earlier claim.  Neither do we find any evidence of a decrease in the hearing loss disability prior to that date.  


ORDER

Service connection for a right knee disability is denied.  

A disability rating in excess of 50 percent for a bilateral hearing loss is denied.  


An effective date of October 17, 2007 and no earlier is granted for a 50 percent rating for the Veteran's bilateral hearing loss.  



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs