Citation Nr: 1325730 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 13-18 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing impairment. 2. Entitlement to an effective date earlier than January 27, 2012, for the grants of service connection for bilateral hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION 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 & Supp. 2012). The Veteran served on active duty from December 1948 to June 1950. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In that determination, the previously denied claims of service connection for hearing loss and tinnitus were reopened. Service connection was established for these conditions, effective the date that the claim was filed to reopen - January 27, 2012. In his July 2013 brief, the Veteran's authorized representative contended that the Veteran should have been granted service connection for bilateral hearing loss and tinnitus based on his original claim and based on the facts then presented. Specifically, he argued that the RO did not adequately consider the Veteran's competency and credibility of the Veteran's assertions of continuity since service. If the Veteran and his authorized representative wish to file a claim of clear and unmistakable error in a prior rating decision, they should do so with the originating agency. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992); but see also Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994) (regarding valid bases of CUE claims). The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is productive of Level XI hearing impairment in the right ear and Level II hearing impairment in the left ear pursuant to 38 C.F.R. § 4.86, Table VI, Table VIa and Table VII (2012). 2. In September 2005 and September 2007 rating actions, the RO denied a claim for service connection for bilateral hearing loss. Although properly notified, the Veteran did not timely appeal the determinations. In June 2009, the Board determined that new and material evidence had not been received to reopen the claim of service connection for bilateral hearing loss and service connection for tinnitus was denied. 3. The Veteran's reopened claims for service connection for hearing loss and tinnitus were received on January 27, 2012. There was no earlier formal or informal claim submitted following the Board's denial of the claims in June 2009. CONCLUSIONS OF LAW 1. The schedular criteria for an initial disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC 6100 (2012). 2. The criteria for an effective date prior to January 27, 2012, for the grants of service connection for bilateral hearing loss and tinnitus have not been met. 38 U.S.C.A. §§ 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to the Veteran's claims which arise from his disagreement with the effective date and the initial rating following the grant of service connection for hearing loss, courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The Board also finds that all necessary development of the claims has been established. All identified pertinent records have been obtained. The Veteran was provided an examination for rating purposes in July 2012. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2012 VA examination is adequate, as it followed review of the Veteran's claims file, examination of the Veteran, including obtaining information from him, and diagnoses and opinions regarding etiology. The examination findings provide a sufficient evidentiary basis for the initial rating claim to be adjudicated. Increased Ratings - In General Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41 (2012). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012). Hearing Loss The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85 (2012). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 (2012). See 38 C.F.R. § 4.85(c) (2012). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more (as in the right ear in the case here), the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2012). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Analysis On the authorized VA audiological evaluation in July 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 20 45 35 75 90 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and of 100 percent in the left ear. The average pure tone decibel loss was 105 in the right ear and 61 in the left ear. Application of the July 2012 VA audiological evaluation results (puretone threshold average level and speech recognition ability (percentage of discrimination)) for the right and left ears using Table VI, results in Roman Numeral XI for the right ear and II for the left ear. Application of this combination to Table VII (in 38 C.F.R. § 4.85), results in a 10 percent evaluation for hearing impairment under DC 6100. Application of the July 2012 VA audiological evaluation results for the right ear using Table VIa results in Roman Numeral XI for the right ear. Combined with Roman numeral II for the left ear, with application of this combination to Table VII, results in a 10 percent evaluation for hearing impairment under DC 6100. As explained above, the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The foregoing discussion shows that most recently, the July 2012 VA examination audiology findings show that application of the relevant combinations of audiological findings to pertinent rules under 38 C.F.R. § 4.85 and 4.86 results in an evaluation no higher than the current 10 percent. To the extent the Veteran argues that his bilateral hearing loss disability is more severely disabling than reflected in the current 10 percent rating, his lay assertions of the severity of his bilateral hearing loss are insufficient to establish entitlement to a higher evaluation for hearing loss. Again, this is because "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". See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); Martinak v. Nicholson, 21 Vet. App. 447 (2007). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Board acknowledges the evidence and implicit argument that the Veteran's bilateral hearing loss has interfered significantly with his ability to communicate. At the July 2012 VA examination, he reported difficulties hearing in all situations, and resulting problems on the job. His need for frequent repetition made him nervous and self-conscious. However, in conducting the first step of the Thun analysis, the Board finds that the rating schedule contemplates the range of hearing loss within which the Veteran's case is found. Accordingly, the Board finds that the Veteran's bilateral hearing loss disability picture is contemplated by the Rating Schedule, and is not exceptional such that referral for consideration of an extraschedular rating is warranted. Id. In sum, the Veteran's service-connected bilateral hearing loss is productive of decreased hearing acuity, which is fully contemplated in the rating criteria. The rating criteria are thus adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. Earlier Effective Dates - In General The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.400 (2012). 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. In cases of reopened claims, the effective date will be the date of receipt of the request to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012), 38 C.F.R. § 3.400 (2012). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). The Court has held that under VA law there is no basis for a freestanding earlier effective date claim from matters addressed in a final rating decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Generally, a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final, if an appeal is not perfected. 38 C.F.R. § 20.1103 (2012). Analysis In statements of record, the Veteran and his authorized representative have contended that the effective date of his grant of service connection for hearing loss and tinnitus should be earlier. It is asserted that the clinical records show that the Veteran's hearing problems have been present since discharge. The pertinent facts show that a Board decision in June 2009 determined that new and material evidence had not been received to reopen the previously denied claim of service connection for hearing loss. Moreover, the claim for service connection for tinnitus was denied. The Veteran did not appeal this decision to the Court and it became final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.1100, 20.1104 (2012). If new and material evidence is presented with respect to a clam which has been disallowed, the claim may be reopened and the former disposition of the claim may be reviewed. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). As the Board's decision in June 2009 denying the claim to reopen for hearing loss and denying service connection for tinnitus is final, the only recourse the Veteran had was to file a claim to reopen entitlement to service connection for these conditions, which he did on January 27, 2012. In an August 2012 rating decision, the claims were reopened based on regulations allowing consideration of the Veteran's military occupational specialty as a contributing factor. The claims were resolved in the Veteran's favor and service connection was established for hearing loss and tinnitus, effective January 27, 2012. Additional private records were added to the file in April 2013 showing that the Veteran was treated for hearing problems in 1952 and in the 1960s. Additional VA records showing VA treatment from 2009 through 2013 were also added in the Veteran's virtual file. Subsequently, as noted in the May 2013 statement of the case (SOC), the 10 percent rating was confirmed for bilateral hearing loss, and an earlier effective date for the grant of hearing loss and tinnitus was denied. Based on these circumstances, it is noted that there is no effective date earlier than January 27, 2012, that may be granted under 38 C.F.R. § 3.114 based on a liberalizing law. Also see 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012), 38 C.F.R. § 3.400 (2012). Before January 27, 2012, there was no communication or action received by VA from the Veteran or his representative of intent to reopen his claim of service connection for hearing loss or tinnitus, constituting an informal claim under 38 C.F.R. § 3.155 (2012) or pending claim under 38 C.F.R. § 3.160(c) (2012), and there is no factual or legal basis to assign an effective date before January 27, 2012. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). In conclusion, the RO assigned the earliest effective date legally permitted in this case, which is the date of receipt of the application to reopen the claims for hearing loss and tinnitus. No earlier effective date is permitted by law in this case. For the above reasons, the preponderance of the evidence is against the claims for an effective date earlier than January 27, 2012, for the grant of service connection for bilateral hearing loss or for tinnitus. The benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012). ORDER An initial disability rating in excess of 10 percent for bilateral hearing loss is denied. Entitlement to an effective date earlier than January 27, 2012, for the grants of service connection for bilateral hearing loss and tinnitus is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs