Citation Nr: 18140803 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-15 948 DATE: ORDER Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to June 9, 2015, and entitlement to a rating in excess of 30 percent thereafter, is denied. Entitlement to an effective date prior to February 11, 2014, for the grant of service connection for tinnitus is denied. FINDINGS OF FACT 1. Prior to June 9, 2015, the Veteran’s bilateral hearing loss has been manifested by level IV hearing loss in each ear. 2. Beginning June 9, 2015, the Veteran’s hearing loss has been manifested by level VI hearing loss in each ear. 3. The Veteran filed a claim for entitlement to service connection for tinnitus which was received by the RO on February 11, 2014. A September 2014 rating decision granted service connection for tinnitus and assigned an effective date of February 11, 2014. 4. No formal or informal claim for service connection for tinnitus was received prior to February 11, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to June 9, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a rating in excess of 30 percent beginning June 9, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria an effective date prior to February 11, 2014, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from April 1971 to December 1978. The Board notes that the Veteran was originally granted service connection for hearing loss in his left ear, but not his right ear, in a September 2014 rating decision. A subsequent rating decision issued in March 2016 noted that the denial of hearing loss for the Veteran’s right ear in the September 2014 rating decision was a clear and unmistakable error and granted the Veteran’s claim for right ear hearing loss, resulting in the Veteran being service connected for bilateral hearing loss with a 10 percent rating as of February 11, 2014. Additionally, the Board notes that the Veteran has an additional appeal pending before the Board, however, the Veteran has a requested a videoconference hearing on those issues and therefore, the Board will address those issues in a later decision. Increased Rating 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to June 9, 2015, and entitlement to a rating in excess of 30 percent thereafter. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). 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. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Veteran was granted service connection for his bilateral hearing under Diagnostic Code 6100 for sensorineural hearing loss. See 38 C.F.R. § 4.85. A rating of 10 percent was assigned in a September 2014 rating decision and was increased to 30 percent effective June 9, 2015, in a March 2016 rating decision. The ratings for defective hearing range from 0 percent to 100 percent, based on the organic impairment of hearing acuity as measured by results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone 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. Further, when the average pure tone 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. Id. Table VIA will be used when the examiner certifies that use of the 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 when an exceptional pattern of hearing loss is shown. a. Prior to June 9, 2015 The Veteran was first provided a VA examination in September 2014. Pure tone threshold, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 60 75 75 LEFT 10 15 65 70 70 The average decibel loss in the right ear was 58 and the average decibel loss in the left ear was 55. Speech recognition ability, using the Maryland CNC test, was 76 percent in the right ear and 82 percent in the left ear. See, September 2014 VA examination. These audiological findings correspond to level IV hearing in each ear. 38 C.F.R. § 4.85, Table IV. Under Table VII, a designation of level IV in both the right and left ears yields a 10 percent disability rating, which the Veteran is in receipt of for the period prior to June 9, 2015. 38 C.F.R. § 4.85, Diagnostic Code 6100. Consideration has been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the Veteran’s audiological findings from his September 2014 VA examination. For this examination, pure tone threshold levels were neither 55 decibels or higher at 1000, 2000, 3000, and 4000 Hertz, nor were they 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Board has not overlooked the statements from the Veteran regarding his hearing loss, and while the Veteran is competent to testify regarding these symptoms as they are within the knowledge and observation of lay witnesses, compensation for hearing loss can only be obtained as a result of the mechanical application of Diagnostic Code 6100. While the Board is sympathetic to the Veteran’s condition, lay testimony by itself is insufficient to determine the severity of hearing loss symptoms for compensation purposes. Accordingly, based on the medical evidence of record as outlined above, the Board finds that the preponderance of the evidence is against a finding of entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to June 9, 2015. b. Beginning June 9, 2015 The Veteran was afforded a subsequent VA examination in connection with his claim in June 2015. Pure tone threshold, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 75 75 80 LEFT 10 25 80 80 80 The average decibel loss in the right ear was 66.25 and the average decibel loss in the left ear was also 66.25. Speech recognition ability, using the Maryland CNC test, was 84 percent in the right ear and 88 percent in the left ear. See, June 2015 VA examination. As the above findings indicate an exceptional pattern of hearing loss, Table VIA was used to determine the Roman numeral designation for hearing loss, and that numeral was then elevated to the next higher Roman numeral. 38 C.F.R. § 4.86. These audiological findings correspond to level V hearing loss in each ear, which was elevated to level VI hearing loss in ear for the presence of an exceptional pattern of hearing loss. Under Table VII, a designation of level VI hearing loss in both the right and left year yields a 30 percent disability rating. 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. The Board has not overlooked the statements from the Veteran regarding his hearing loss, and while the Veteran is competent to testify regarding these symptoms as they are within the knowledge and observation of lay witnesses, compensation for hearing loss can only be obtained as a result of the mechanical application of Diagnostic Code 6100. While the Board is sympathetic to the Veteran’s condition, lay testimony by itself is insufficient to determine the severity of hearing loss symptoms for compensation purposes. Accordingly, based on the medical evidence of record as outlined above, the Board finds that the preponderance of the evidence is against a finding of entitlement to a rating in excess of 30 percent for bilateral hearing beginning June 9, 2015. Earlier Effective Date 2. Entitlement to an effective date prior to February 11, 2014, for the grant of service connection for tinnitus The Veteran and his representative have asserted that he entitled to an effective date earlier than February 11, 2014, for the grant of service connection for tinnitus. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400 (b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim may arise. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). There is no evidence of a formal or informal claim for entitlement to service connection for tinnitus received by the RO prior to February 11, 2014. The Board is bound by law on this matter, and is without authority to grant the benefit sought on an equitable basis. As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant the appeal. Based on this record, no effective date earlier than February 11, 2014, is warranted for service connection for the Veteran’s tinnitus. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. Sabonis v. Brown, 6 Vet. App. 426 (1994). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel