Citation Nr: 18145121 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-37 915 DATE: October 26, 2018 ORDER Entitlement to an effective date prior to July 17, 2014, for the 100 percent evaluation assigned for bilateral hearing loss is denied. FINDINGS OF FACT 1. On July 2, 2014, the Board issued a decision denying the Veteran’s claim for a compensable rating for bilateral hearing loss, and the Veteran did not appeal that decision. 2. On July 17, 2014, the Veteran filed a claim for a total disability rating based upon individual unemployability (TDIU), which the Regional Office (RO) construed as a claim for increased ratings for the Veteran’s service-connected disabilities. 3. In a September 2014 rating action, and after reviewing the report of examination conducted for VA purposes in August 2014, the Veteran was assigned a 100 percent schedular evaluation for bilateral hearing loss, effective from July 17, 2014. 4. There is no evidence related to the Veteran’s hearing loss in the record dated in the fifteen days between the July 2, 2014, Board decision and the July 17, 2014, claim. CONCLUSION OF LAW The criteria for an effective date prior to July 17, 2014, for the 100 percent evaluation assigned for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Except as otherwise provided, the effective date of an evaluation and award of compensation will be the date of receipt of claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The general rule with respect to the effective date of an award of increased compensation is that the effective date of award, “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110(a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, where the 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. If an increase in disability occurred within one year prior to date of receipt of 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 date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC12-98 (1998). In this case, the Veteran was service connected for his hearing loss disability in May 2007 and a noncompensable rating was assigned. He filed a claim for increase in April 2008, which was denied by way of a July 2008 rating decision. The Veteran perfected an appeal of this decision and on July 2, 2014, the Board issued a decision denying an increased rating for bilateral hearing loss. Just fifteen days later, on July 17, 2014, the Veteran submitted a claim for a TDIU, which was construed by the RO as a claim for increase for all service connected disabilities. Following evidentiary development, the RO then issued the September 2014 rating decision on appeal, which awarded a 100 percent rating for bilateral hearing loss, effective July 17, 2014. All decisions of the Board will be stamped with the date of mailing on the face of the decision and the decision is final on the date stamped on the decision. 38 C.F.R. § 20.1100(a) (2017). Thus, the July 2, 2017 Board decision related to the appropriate rating for bilateral hearing loss is final. It would be inappropriate for the Board to now examine the evidence considered to make that decision. Therefore, as the rating on appeal was assigned as of the date of the claim, the question in this case is whether there was any factually ascertainable increase after the final Board decision and before the claim. Thus, in this case, the Board is looking for evidence between July 2, 2017, and July 17, 2014, showing a factually ascertainable increase in the hearing loss disability during that time period. The Board has indeed reviewed the file and there are no clinical records, lay statements or VA examination reports to support an increase prior to July 17, 2014. Thus, the 100 percent rating for bilateral hearing loss is not warranted prior to July 17, 2014, because the evidence fails to establish that the disability met the criteria for a 100 percent rating prior to that date. In reaching this decision the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel