Citation Nr: 1751443 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-10 928A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to an effective date prior to May 23, 2016 for a 40 percent evaluation for bilateral sensorineural hearing loss. ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1957 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The request to reopen the issue of entitlement to service connection for a perforated left tympanic membrane has been raised by the record in a March 2017 statement, 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. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The record evidence shows that the Veteran's claim for an increased rating for bilateral hearing loss was received on May 23, 2016. 2. There is no competent evidence showing a worsening of bilateral hearing loss symptoms within one year of the Veteran's claim for increase. 3. The earliest effective date for a 40 percent rating for bilateral hearing loss is May 23, 2016, the date the Veteran first filed his claim. CONCLUSION OF LAW The criteria for an effective date prior to May 23, 2016 for the assignment of a 40 percent evaluation for bilateral hearing loss are not met. 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Relevant Legal Principles The effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). The Veteran filed his increased rating claim on August 2, 2010. In this regard, this decision will consider whether an increased rating is warranted for any portion of the one year period prior to the date of claim (i.e., August 2, 2009, to August 2, 2010). See Gaston v. Shinseki, 603 F.3d 979, 984 (Fed. Cir. 2010) (holding that 38 U.S.C.A. § 5110(b)(2) and its implementing regulation "require[e] that an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date."). The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results under Diagnostic Code (DC) 6100 for hearing loss. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. 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 puretone audiometry tests in the frequencies 1000; 2000; 3000; and 4000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule 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, DC 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, 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). The provisions of 38 C.F.R. § 4.86(b) further provide that, 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 would result in the higher numeral, and that numeral will be elevated to the next higher numeral. Analysis The Veteran asserted that his assigned 40 percent rating should be effective prior to May 23, 2016. Specifically, the Veteran asserts that his increase should date back to his earlier increased rating claims. See November 2016 Notice of Disagreement. Notably, the Veteran filed an increased rating claim for bilateral hearing loss in February 2013. The Veteran underwent a VA audiological evaluation in April 2013 in connection with the claim. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 60 65 75 LEFT 35 35 40 65 60 His average puretone threshold was 66 in the right ear and 50 in the left ear. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 76 percent in the left ear. The results of the Veteran's April 2013 audiogram reveal no worse than Level VII hearing acuity in the right ear and Level IV hearing acuity in the left ear. Application of the above-noted findings to Table VII result in a 20 percent disability rating under 38 C.F.R. § 4.85, DC 6100. In a September 2013 rating decision the RO continued the 20 percent rating. In a November 2013 correspondence, the Veteran again requested an increased rating in his evaluation for hearing loss indicating that he is now regularly wearing a hearing aid. The Veteran underwent an additional VA audiological evaluation in October 2014. The October 2014 puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 60 65 75 LEFT 45 45 60 75 80 His average puretone threshold was 66.25 in the right ear and 65 in the left ear. The examiner reported that the Veteran was unable to complete the speech discrimination test because he was unable to follow directions. The results of the Veteran's October 2014 audiogram reveal no worse than Level V hearing acuity in the right ear and Level V hearing acuity in the left ear. Application of the above-noted findings to Table VII result in a 20 percent disability rating under 38 C.F.R. § 4.85, DC 6100. Thus, in an October 2014 rating decision, the RO denied the Veteran's increased rating claim and continued the 20 percent evaluation for bilateral hearing loss. The Veteran did not file a notice of disagreement with the claim or submit new evidence in support of the claim within one year of rating decision. The Veteran filed his most recent increased rating claim for bilateral hearing loss on May 23, 2016. The Veteran was afforded a VA audiological evaluation in June 2016. The examination showed a worsening in the Veteran's bilateral hearing loss symptoms. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 70 70 70 85 LEFT 45 50 60 70 85 His average puretone threshold was 74 in the right ear and 66 in the left ear. His speech discrimination score was 40 percent in the right ear and 72 percent in the left ear. The results of the Veteran's June 2016 audiogram reveal no worse than Level IX hearing acuity in the right ear and Level VI hearing acuity in the left ear. Application of the above-noted findings to Table VII result in a 40 percent disability rating under 38 C.F.R. § 4.85, DC 6100. The Board has considered whether an increased rating is warranted for any portion of the one year period prior to the date of claim (i.e., August 2, 2009, to August 2, 2010). See Gaston v. Shinseki, 603 F.3d 979, 984 (Fed. Cir. 2010) (holding that 38 U.S.C.A. § 5110(b)(2) and its implementing regulation "require[e] that an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date."). However, the competent medical evidence of record does not show that the Veteran's bilateral hearing symptoms increased to the level of 40 percent prior to the June 2016 audiological evaluation. As such, there is no competent or credible evidence showing a worsening of his bilateral hearing loss symptoms within one year of filing his claim for increase. The Board has considered the Veteran's assertion that his consistent use of hearing aids marked a worsening of his bilateral hearing loss symptoms. See November 2016 Notice of Disagreement. The Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent audiological evaluations of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Under these circumstances, an effective date earlier than May 23, 2016, for the assignment of a 40 percent rating for bilateral hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an effective date prior to May 23, 2016 for a 40 percent evaluation for bilateral sensorineural hearing loss is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs