Citation Nr: 18156399 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 18-11 195 DATE: December 11, 2018 ORDER A 40 percent rating, but no more, is granted for bilateral hearing loss for the entire period on appeal. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date prior to October 30, 2009, for the award of service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to October 30, 2009, for the award of service connection for tinnitus is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s hearing acuity, at worst, has been Level VII in the right ear and VIII in the right ear. 2. The Veteran’s tinnitus has been assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. 3. In an unappealed January 2002 decision, the Board of Veterans’ Appeals (Board) denied service connection for bilateral hearing loss. 4. The Veteran’s petition to reopen the previously denied claim for service connection for bilateral hearing loss, and his original claim for service connection for tinnitus, were received on October 30, 2009. 5. There is no pending, unadjudicated petition to reopen the claim for service connection for bilateral hearing loss, or an unadjudicated claim for service connection for tinnitus, prior to October 30, 2009. CONCLUSIONS OF LAW 1. The criteria for a 40 percent evaluation, but no higher, for bilateral hearing loss have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.85, Diagnostic Code 6100. 2. There is no legal basis for the assignment of a schedular evaluation greater than 10 percent for the Veteran’s tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.87, Diagnostic Code 6260. 3. The criteria for the assignment of an effective date prior to October 30, 2009, for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for the assignment of an effective date prior to October 30, 2009, for the award of service connection 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 on active duty in the United States Air Force from May 1951 to November 1953. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center in Washington, D.C. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to August 13, 2013, and in excess of 40 percent thereafter. The Veteran is currently assigned a 10 percent evaluation for his bilateral hearing loss pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, effective October 30, 2009, and a 40 percent evaluation since August 13, 2013. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 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 audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone 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 pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level “V” and the poorer ear had a numeric designation of Level “VII” the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. The Veteran was afforded a VA examination in August 2013 at which time his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 75 85 85 78 LEFT 85 80 75 85 81 The Maryland CNC controlled speech discrimination test revealed speech recognition of 80 percent in the right ear and 72 percent in the left ear. These results demonstrate an exceptional pattern of hearing in both ears, as the Veteran exhibited pure tone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz. Based on Table VI, a hearing level acuity of Level V is assigned to the right ear and a hearing level acuity of Level VI is assigned to the left ear. Alternatively, based on Table VIA, a hearing acuity of Level VII is warranted for each ear. See 38 C.F.R. § 4.86(a). As the values derived from Table VIA result in a higher numerical evaluation, the Board will use these values to rate the Veteran’s bilateral hearing loss disability. When these values are applied to Table VII, the Veteran is entitled to a 40 percent evaluation for his bilateral hearing loss disability pursuant to the provisions of 38 C.F.R. § 4.85. The Veteran was afforded his most recent VA examination in November 2017 at which time his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 70 75 80 73 LEFT 85 75 75 85 80 The Maryland CNC controlled speech discrimination test revealed speech recognition of 62 percent in the right ear and 58 percent in the left ear. These results demonstrate an exceptional pattern of hearing in both ears, as the Veteran exhibited pure tone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz. Based on Table VI, a hearing level acuity of Level VII is assigned to the right ear and a hearing level acuity of Level VIII is assigned to the left ear. Alternatively, based on Table VIA, a hearing acuity of Level VI is assigned for the right ear and VII for the left ear. See 38 C.F.R. § 4.86(a). As the values derived from Table VI result in a higher numerical evaluation, the Board will use these values to rate the Veteran’s bilateral hearing loss disability. When these values derived from Table VIA are applied to Table VII, the Veteran is entitled to a 40 percent evaluation for his bilateral hearing loss disability pursuant to the provisions of 38 C.F.R. § 4.85. The Board acknowledges that there are VA audiograms dated in February 2010, January 2014, and May 2017. However, these examinations do not contain the results of Maryland CNC speech discrimination testing. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Therefore, the Board is not able to consider these test results for rating purposes. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). Based on the foregoing, the audiological examinations complying with the regulatory requirements show that the Veteran is entitled to a 40 percent evaluation for his bilateral hearing loss, but no higher. 38 C.F.R. § 4.85, Diagnostic Code 6100. Resolving reasonable doubt in the Veteran’s favor, and in the absence of objective evidence demonstrating a lesser degree of disability during the period dating back to October 30, 2009, the Board finds that the 40 percent rating should be applied throughout the period on appeal. The Board has considered the Veteran’s lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an evaluation greater than 10 percent for tinnitus. In a September 2013 rating decision, the Veteran was granted service connection for tinnitus and assigned a 10 percent evaluation under Diagnostic Code 6260, effective October 30, 2009. Diagnostic Code 6260 provides a maximum rating of 10 percent for recurrent tinnitus. 38 C.F.R. § 4.87. The Veteran is already in receipt of that rating, and the Board finds no basis for the assignment of a higher rating under any applicable provision of law. The claim must be denied. Effective Dates 3. Entitlement to an effective date prior to October 30, 2009, for the award of service connection for bilateral hearing loss. 4. Entitlement to an effective date prior to October 30, 2009, for the award of service connection for tinnitus. Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See Id.; 38 C.F.R. § 3.400(r). A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2017). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Here, in October 1993, the Veteran filed a claim for service connection for hearing loss. Thereafter, in a June 1994 rating decision, the agency of original jurisdiction (AOJ) denied the claim. Following a series of adjudicative actions, including a remand by the Board in October 1998, the Board denied service connection for defective hearing by a decision entered in January 2002. The Veteran did not appeal the Board’s decision to the United States Court of Appeals for Veterans Claims. As such, the Board’s decision remained final. On October 30, 2009, VA received a petition to reopen the claim of entitlement to service connection for bilateral hearing loss and an original claim of entitlement to service connection for tinnitus. In July 2013, the Board reopened the claim of entitlement to service connection for bilateral loss and remanded the claims of entitlement to service connection for bilateral hearing loss and tinnitus. Subsequently, in a September 2013 rating decision, the AOJ granted service connection for bilateral hearing loss and tinnitus effective October 30, 2009. The Board notes that there are no other unadjudicated claims for entitlement to service connection for tinnitus or bilateral hearing loss. There is no additional evidence of record that makes any reference to the Veteran’s bilateral hearing loss between the issuance of the January 2002 Board’s decision and the Veteran’s petition to reopen on October 30, 2009. The Board has reviewed all relevant evidence and finds no basis under the law to award effective dates earlier than October 30, 2009, the date of his petition to reopen his claim for bilateral hearing loss and his first claim of service connection for tinnitus. Regarding the Veteran’s award of service connection for tinnitus, there is no basis for an effective date prior to October 30, 2009. This is the date of the Veteran’s original claim for service connection and is the earliest available effective date under the law. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Turning to the Veteran’s claim of entitlement to service connection for bilateral hearing loss, the relevant regulation provides that any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application, in this case, October 30, 2009. Finality determinations contained within the prior final decisions that denied service connection for bilateral hearing loss can only be addressed through a claim of clear and unmistakable error (CUE) as to those decisions. See 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 3.104, 3.105, 20.1400 (2017). The Veteran has not claimed CUE. No correspondence from the Veteran or other evidence of any kind was received by VA between the January 2002 Board decision and the October 30, 2009 claim. The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). The claims of entitlement to effective dates earlier than October 30, 2009, for the awards of service connection for   bilateral hearing loss and tinnitus must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. R. Watkins, Counsel