Citation Nr: 1800324 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-44 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss. 2. Entitlement to an effective date prior to October 25, 2012 for the grant of service connection for tinnitus. REPRESENTATION Appellant represented by: Brendan B. Garcia, Attorney ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to June 1958. This matter is on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 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. For the entire period on appeal, the Veteran had no worse than level II hearing in the left ear and level II hearing in the right ear. 2. The Veteran abandoned a May 1975 claim for "hearing deficiency". 3. On October 25, 2012, the Veteran filed a claim for tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). 2. The criteria for an effective date prior to October 25, 2012, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.158, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims for service connection for bilateral hearing loss and tinnitus were initially denied in a February 2014 rating decision. The Veteran requested a hearing before Decision Review Officer (DRO) in connection with his notice of disagreement regarding that rating decision. Prior to the scheduled April 2015 hearing, in March 2015, the Veteran requested that the DRO hearing be rescheduled pending the fulfillment of the Veteran's request for service treatment records. Thereafter, in the August 2015 rating decision now on appeal, service connection for bilateral hearing loss and tinnitus was granted. That award constitutes a full grant of the disability sought, and that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). In that regard, the Veteran now contests the rating assigned to his service-connected bilateral hearing loss and the effective date of his service-connected tinnitus. He did not request a DRO hearing with respect to these new claims. Accordingly, the Board has proper jurisdiction over these claims and may proceed. See 38 C.F.R. § 2.600. In correspondence received in April 2016, the Veteran requested a "reevaluation of the percentage of disability [of] hearing loss" based on the results of a December 2015 private hearing examination. He noted that the last VA audiological examination was in September 2013. The Board notes that the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, the Veteran has provided audiological testing which can be used to evaluate the current severity of his hearing loss and he has not provided objective evidence indicating that there has been a material change in the severity of the Veteran's hearing loss since the December 2015 private examination. Accordingly, an updated VA examination is not found necessary to adjudicate the claim. Further, there is no evidence that the Veteran has had ongoing treatment for the disabilities on appeal. Accordingly, updated treatment records have not been requested. With the exception of the above, neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist with respect to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Rating for Bilateral Hearing Loss Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran's bilateral hearing loss is currently rated as noncompensably disabling under Diagnostic Code 6100. The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Specifically, organic impairment of hearing acuity is rated using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by puretone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85(a). Tests are conducted without hearing aids. VA rating criteria for evaluating hearing loss disability provide ratings from 0 (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. "Puretone threshold average," as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. Average puretone decibel (dB) loss is located on Table VI along a horizontal axis, and percent of speech discrimination is located along a vertical axis. These axes intersect to determine the Roman numeral designation for hearing impairment in each ear. The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Diagnostic Code 6100. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The September 2013 VA examination yielded the following audiological results: puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) as follows: 15, 20, 35, and 5, for an average of 19 dB, and puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows 20, 25, 55, and 65, for an average of 41 dB. The speech recognition score, using the Maryland CNC Test, was 84 percent in both ears. The examiner diagnosed bilateral sensorineural hearing loss. The examiner noted that the Veteran reported difficulty understanding conversational speech in noise or at distances without visual cues. Evaluating the VA audiological test results cited above, when the puretone threshold averages and the speech recognition scores are applied to Table VI, the numeric designation of hearing impairment is level II for the left and right ears. When these numeric designations from the VA examination are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is 0 percent. No exceptional pattern of hearing impairment is noted to warrant application of Table VI or VIa. The Veteran submitted a private audiological examination from April 2015. He reported difficulty hearing in adverse listening situations. Word recognition scores were judged to be 84 percent in the right ear and 88 percent in the left ear. Puretone thresholds were not reported. The audiologist indicated that the results showed a change in hearing since previous testing in October 2013. The same audiologist examined the Veteran in December 2015. The audiologist noted that the results of an air conduction study showed average puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) as follows: 30, 40, 65, and 80, for an average of 54 dB, and puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows 30, 40, 70, and 80, for an average of 55 dB. The results of the speech discrimination testing were 88 percent in the left ear and 84 percent in the right ear. When these results are applied to Table VI, the numeric designation of hearing impairment is level II for the left and right ears. When these numeric designations for the right and left ears from the VA examination are applied to Table VII, the percentage of disability for hearing impairment is 0 percent. Because it is not clear whether the Maryland CNC was used in the December 2015 examination, and in order to afford the Veteran every possible consideration, the Board also applied the examination results to Table VIa for numeric designation of hearing impairment based only on puretone threshold average. Under Table VIa, the numeric designation of hearing impairment is level III for the left and right ears. When these numeric designations are applied to Table VII, the percentage of disability for hearing impairment remains 0 percent. Accordingly, a compensable rating is not warranted during the entire appeal period. See 38 C.F.R. § 4.85, DC 6100 The Board acknowledges the Veteran's statements that his hearing loss warrants an increased rating. However, as noted above, the evaluation of hearing loss is reached by a mechanical application of the rating schedule, to the numeric designations assigned, after audiometric evaluations are rendered. See Lendenmann, supra. In reviewing the record, the Board finds that the Veteran's degree of bilateral hearing loss does not meet the standards for a compensable evaluation during the appeal period. Thus, there is no basis for assignment of a compensable rating for bilateral hearing loss at any point during the appeal period. See Hart, 21 Vet. App. 505. The preponderance of the evidence is against the claim and a compensable rating for service-connected bilateral hearing loss is denied. Earlier Effective Date for Tinnitus The Veteran is seeking an effective date earlier than October 25, 2012 for the grant of service connection for tinnitus. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). If the claim for service connection is received within one year of a veteran's discharge from service, the effective date of an award of service connection will be the day following discharge from service. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2) (2017); see also Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) "applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran's separation"). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2) (2017). A "claim" broadly includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Historically, the Veteran filed a formal claim for service connection for a "LT ear infection- chronic" in May 1965. In a June 1965 rating decision, the RO denied service connection for a left ear infection - otitis externa - otitis media. The Veteran did not appeal that decision within one year, nor did he submit any evidence that was material to his claim during this time. See Buie v. Shinseki, 24 Vet. App. 242 (2011). Thereafter, in May 1975, the Veteran filed a claim for "hearing deficiency" that he attributed to his in-service ear infection and "chronic ear problems". In May 1975, the Veteran was notified that his hearing condition claim was not being reopened as he did not submit new and material evidence related to his claimed disability. It is acknowledged that the Veteran's "hearing deficiency" claim could have been construed as a new claim as opposed to a claim to reopen. However, the fact remains that the Veteran did not respond to this notification or file any additional evidence within one year. The regulations provide that where evidence requested in connection with a claim to reopen is not furnished within 1 year after the date of request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). Accordingly, the Veteran's May 1975 claim is considered abandoned. After the expiration of 1 year, further action will not be taken on the claim unless a new claim is received. Id. Should the right to benefits be finally established, payment shall commence not earlier than the date of filing the new claim. Id. The RO received the Veteran's present claim for "hearing deficiency" on October 25, 2012. Pursuant to 38 C.F.R. § 3.158(a), the proper effective date is the date of the new claim. Even under 38 C.F.R. § 3.400, the law provides that the effective date of a claim filed after one year from discharge is the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2) (2017). In this case, the Veteran filed his claim more than one year following discharge and his medical records from the appeal period first show tinnitus in 2013. There is no evidence or argument to support an effective date for the grant of service connection for tinnitus prior to October 25, 2012. The Board is sympathetic to the Veteran's contention that he previously filed claims for service connection regarding his ear or a hearing deficiency in 1965 and 1975, respectively. However, the law and regulations concerning effective dates are very specific. The facts in this case are not in dispute, and application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. Entitlement to an effective date prior to October 25, 2012, for the grant of service connection for tinnitus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs