Citation Nr: 1802630	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  17-63 298	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an earlier effective date for the grant of a 50 percent rating for a bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Penelope E. Gronbeck, Attorney


ATTORNEY FOR THE BOARD

L. Pelican, Counsel



INTRODUCTION

The Veteran served on active duty in the Navy from March 1945 to July 1946.  He was awarded the American Theater Medal and Victory Medal.  

This case comes before the Board of Veterans' Appeals (the Board) from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran filed a claim for an increased rating for a bilateral hearing loss disability, which was received at the RO on June 7, 2013; it is not factually ascertainable that an increase in the severity of the Veteran's bilateral hearing loss disability occurred prior to that date.  


CONCLUSION OF LAW

The requirements for an effective date earlier than June 7, 2013, for the grant of an increased rating of 50 percent for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1155, 5107, 5110, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.85, 4.86 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran disagreed with the effective date of the grant of an increased rating to 50 percent for his service-connected bilateral hearing loss disability.  He contends that he is entitled to an earlier effective date.  See April 2015 Notice of Disagreement.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3 (2017).  

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity based on the results of controlled speech discrimination tests, in conjunction with the average hearing threshold as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.

The disability evaluation percentage is then found from Table VII (in 38 C.F.R. § 4.85), by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.

The provisions of 38 C.F.R. § 4.86(a) (2017) provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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.  The provisions of 38 C.F.R. § 4.86(b)(2017) provide that when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.

In general, 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 increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017).  An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  In such an instance, the law provides that the effective date of the award "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. § 5110(b)(2) (2012); see also 38 C.F.R. § 3.400(o)(2) (2017); Harper v. Brown, 10 Vet. App. 125 (1997).  

The Court and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C. § 5110(b)(2) (2012); Harper v. Brown, 10 Vet. App. at 126; 38 C.F.R. § 3.400(o)(1)(2) (2017); VAOPGCPREC 12-98 (1998).  The Court has further held that evidence in a claimant's file which "demonstrates that an increase in disability was ascertainable" up to one year prior to a claim for VA compensation "should be dispositive on the question of an effective date for any award that ensues."  See Quarles v. Derwinski, 3 Vet. App. 129 (1992).  Regarding when a factually ascertainable increase in disability occurs, the Board notes that the term "increase" means increase to the next disability level.  Hazan v. Gober, 10 Vet. App. 511, 519 (1997).

By way of procedural history, service connection was granted for a bilateral hearing loss disability in a March 2013 rating decision.  A 20 percent disability rating was assigned at that time, effective August 22, 2011.  The Veteran did not file a Notice of Disagreement with that decision, and it became final.  38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011).  The next communication of record from the Veteran regarding his bilateral hearing loss disability was his June 7, 2013 VA Form 21-4138, on which he requested an increased rating for the disability.  As there was no evidence of a claim for an increase, or correspondence of any kind that could be interpreted as a claim for an increase, prior to that date, the RO assigned an effective date of June 7, 2013.  

However, the question remains whether it is factually ascertainable that the Veteran's bilateral hearing loss disability underwent an increase in severity within the year prior to his June 7, 2013 claim.

The Veteran was afforded a VA audiological examination in January 2012.  The examination report noted the following puretone thresholds, in decibels:




HERTZ




500
1000
2000
3000
4000
Avg.
RIGHT
45
55
60
65
75
64
LEFT
45
50
55
65
75
61

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 70 percent in the left ear.  The hearing impairment levels correspond to Level IV in the right ear and Level V in the left ear under Table VI.  Intersecting Levels IV and V under Table VII results in a 10 percent disability rating.  

A September 2012 report from First Coast Hearing Clinic noted the following puretone thresholds, in decibels:




HERTZ




500
1000
2000
3000
4000
Avg.
RIGHT
45
55
70
70
75
68
LEFT
40
55
60
70
75
65

Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 80 percent in the left ear.  The hearing impairment levels correspond to Level VI in the right ear and Level IV in the left ear under Table VI.  Intersecting Levels IV and VI under Table VII results in a 20 percent disability rating.  

The Veteran was afforded a VA examination in June 2014.  The report noted the following puretone thresholds, in decibels:




HERTZ




500
1000
2000
3000
4000
Avg.
RIGHT
50
65
65
80
95
76
LEFT
55
60
70
75
90
74

Speech audiometry revealed speech recognition ability of 44 percent in the right ear and 64 percent in the left ear.  The hearing impairment levels correspond to Level IX in the right ear and Level VII in the left ear under Table VI.  Intersecting Levels IX and VII under Table VII results in a 50 percent disability rating.  

Based on the foregoing, it is apparent that the medical evidence of record does not support the assignment of an effective date earlier than June 7, 2013.  The earliest evidence demonstrating hearing loss sufficient to warrant a 50 percent rating is the June 2014 VA examination report.  Thus, an effective date earlier than June 7, 2013, the date of the Veteran's increased rating claim, is not warranted.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).


ORDER

An effective date earlier than June 7, 2013 for the assignment of a 50 percent rating for a bilateral hearing loss disability is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs