Citation Nr: 1804916 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-43 547 ) DATE Advanced on the Docket ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss. 2. Entitlement to an effective date earlier than September 26, 2012 for the award of service connection for bilateral hearing loss. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ORDER A rating higher than 20 percent for bilateral hearing loss is denied. Entitlement to an effective date earlier than September 26, 2012 for the award of service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's service-connected bilateral hearing loss is manifested by no worse than level VI hearing acuity in the right ear and level IV hearing acuity in the left ear. 2. A final October 2009 rating decision denied service connection for bilateral hearing loss. 3. VA first received a claim to reopen service connection for bilateral hearing loss on September 26, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). 2. The criteria for an effective date earlier than September 26, 2012 for a grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. §3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from 1957 to 1959. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a December 2014 VA Form 9, the Veteran referenced a letter that was sent to him and dated on December 2, 2014. An October 2015 VA Form 8 notes that a statement of the case (SOC) was furnished on December 2, 2014. However, the claims file does not contain a copy of a December 2014 SOC. The file only contains a December 2017 SOC and does not reflect the Veteran filed a substantive appeal after this SOC was issued. Nonetheless, the Board finds waiver of the substantive appeal requirement is warranted in this case given the evidence suggesting a 2014 SOC existed at some point, even if it can no longer be found in the Veteran's claims file. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009).. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100 (2017). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86 (a) (2015). Further, when the average 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 considered separately. 38 C.F.R. § 4.86 (b). The Veteran underwent VA examination in April 2013. He reported that he had difficulty hearing and understanding conversations especially if he was in a group or crowd. Puretone thresholds values revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 70 85 80 LEFT 25 35 70 75 85 Average puretone thresholds were 65 in the right ear and 66.25 in the left ear. Speech recognition scores were 78 percent for the right ear and 80 percent for the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IV hearing loss in the right ear and Level IV in the left ear. Where hearing loss is at Level IV in one ear and Level IV in the other, a 10 percent rating is assigned under Table VII. However, consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment as to the Veteran's right ear. While pure tone threshold levels were not 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, they were 30 dB or less at 1,000 hertz and 70 dB or more at 2000 hertz. Thus, the Board must apply 38 C.F.R. § 4.86 (b). Under Table VIa, the Veteran's average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz for the right ear was 65 decibels, and such warrants a level V, which is elevated to level VI, the next higher Roman numeral. 38 C.F.R. § 4.86 (b). Under Table VII, a designation of level VI hearing in the right ear and level IV hearing in the left ear, yields a 20 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran underwent VA examination in January 2014. He reported that he had difficulty hearing and understanding conversations especially if he was in a group or crowd. Puretone thresholds values revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 75 80 85 LEFT 30 40 70 70 85 Average puretone thresholds were 65 in the right ear and 66.25 in the left ear. Speech recognition scores were 76 percent for the right ear and 82 percent for the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IV hearing loss in the right ear and Level IV in the left ear. Where hearing loss is at Level IV in one ear and Level IV in the other, a 10 percent rating is assigned under Table VII. However, consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment as to the Veteran's right ear. While pure tone threshold levels were not 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, they were 30 dB or less at 1,000 hertz and 70 dB or more at 2000 hertz. Thus, the Board must apply 38 C.F.R. § 4.86 (b). Under Table VIa, the Veteran's average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz for the right ear was 65 decibels, and such warrants a level V, which is elevated to level VI, the next higher Roman numeral. 38 C.F.R. § 4.86 (b). Under Table VII, a designation of level VI hearing in the right ear and level IV hearing in the left ear, yields a 20 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Most recently, the Veteran underwent VA examination in October 2014. The Veteran reported that he could hear, but could not understand. He stated that he could not hear his wife from another room. He further reported that he lost his job because of hearing problems as he misunderstood orders and went to the wrong location. Puretone thresholds values revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 65 80 80 LEFT 25 30 65 65 65 Average puretone thresholds were 60 in the right ear and 55 in the left ear. Speech recognition scores were 94 percent for the right ear and 94 percent for the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level I in the left ear. Where hearing loss is at Level I in one ear and Level III in the other, a noncompensable percent rating is assigned under Table VII. The Board notes that the October 2014 audiogram results do not establish the requisite criteria for application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86. Upon careful review, the Board finds that the evidence is not sufficient to demonstrate that the Veteran's hearing loss meets the criteria for a rating higher than 20 percent during any period on appeal. 38 C.F.R. § 4.85. As the preponderance of the evidence is against the claim for a rating higher than 20 percent for bilateral hearing loss; there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. II. Earlier Effective Date The Veteran originally filed a service connection claim for bilateral hearing loss that was received on December 8, 2008. The claim was denied by an October 14, 2009 rating decision. The Veteran did not file a timely notice of disagreement and VA did not receive new and material evidence regarding bilateral hearing loss within one year of notice of the decision; therefore, the October 2009 rating decision is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.156 (b), 20.302; 20.1103 (2017). On September 26, 2012, the Veteran sought to reopen his service connection claim for bilateral hearing loss, and the claim was reopened and ultimately granted in an April 2013 rating decision. An effective date of September 26, 2012, was assigned, consistent with the date of the Veteran's request to reopen his claim. In May 2013, the Veteran filed a VA Form 21-526. The Veteran listed hearing loss as a disability and under the columns of "date began" and "place of treatment," he handwrote "see proof from Robersonville, NC dated 11/11/76." The Veteran attached a November 1976 document from the National Personnel Records Center, informing him that they had not "been able to find the record needed to answer this inquiry. If the record was here on July 12, 1983, it would have been in the area that suffered the most damage in the fire on that date and may have been destroyed." The Veteran attached this document in support of his assertion that he may have filed a service connection claim for bilateral hearing loss in or around 1976, while he was attempting to find his service treatment records. The Agency of Original Jurisdiction (AOJ) has construed the Veteran's May 2013 VA Form 21-526 as a claim for an earlier effective date of the grant of service connection. However, the Veteran's May 2013 VA Form 21-526 was filed within a year of the April 2013 rating decision, and given the reference to the November 1976 document, the Board finds that, liberally construed, the May 2013 communication was a valid notice of disagreement as to the effective date of the grant of service connection for bilateral hearing loss. See 38 C.F.R. § 20.201 (in effect prior to March 24, 2015) (NOD does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). Thus, the claim for an earlier effective date for the grant of service connection for bilateral hearing loss in this case is not an improper freestanding earlier effective date claim (as it was characterized by the AOJ) and will be addressed on the merits. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (a claimant is not entitled to subsequently make an earlier effective date claim after a prior final denial was not properly appealed). Generally, the effective date for an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017). With respect to claims to reopen, an effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. §5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting for an award based on a claim reopened after a final adjudication, the effective date is typically the date that the request to reopen was filed). There is no provision in either statute or VA regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant service department records. See 38 U.S.C. §5110 (i); 38 C.F.R. §§ 3.105, 3.156 (c). Here, the record clearly establishes the Veteran filed a request to reopen his service connection claim for bilateral hearing loss on September 26, 2012. As there was a prior final denial of the Veteran's claim for service connection for hearing loss, the effective date cannot, under VA laws and regulations, be earlier than the claim to reopen. The Veteran's successful claim to reopen was filed on September 26, 2012, which is the current effective date for his award of service connection. Thus, the request for an earlier effective date for service connection for bilateral hearing loss must be denied. REMAND TDIU TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). During the Veteran's October 2014 VA audio examination, he reported that he lost his job because of hearing problems as he misunderstood orders and went to the wrong location. This statement appears to attribute his employment difficulties to his bilateral hearing loss symptoms. Thus, TDIU is raised by the record. It is unclear, however, if the Veteran is currently employed, and the Veteran has not been provided information regarding what is needed to substantiate a TDIU claim. Thus, remand is warranted for this issue. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records. 2. Provide the Veteran with VCAA notice for a TDIU claim and attempt to obtain information from him regarding his current employment status. 3. Adjudicate the issue of entitlement to a TDIU. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Copy mailed to: Georgia Department of Veterans Services Department of Veterans Affairs