Citation Nr: 18158945 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 14-30 972A DATE: December 18, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial increased rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date earlier than October 2, 2012, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than October 2, 2012, for the grant of service connection for tinnitus is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran has had no more than Level II hearing loss in the right ear and left ear. 2. The current single 10 percent rating assigned for tinnitus is the maximum evaluation under the Veteran Affairs rating schedule. 3. The record does not contain evidence that a claim of entitlement to service connection for bilateral hearing loss was filed before October 2, 2012. 4. The record does not contain evidence that a claim of entitlement to service connection for tinnitus was filed before October 2, 2012. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.86, Diagnostic Code 6100 (2017). 2. There is no legal basis for the assignment of either a higher single evaluation for tinnitus or separate 10 percent disability ratings for the tinnitus of each ear. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). 3. The criteria for entitlement to an effective date, prior to October 2, 2012, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2017). 4. The criteria for entitlement to an effective date, prior to October 2, 2012, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to June 1973. These matters come before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. These claims were previously before the Board in April 2018. The Board remanded the issues of entitlement to an effective date earlier than October 2, 2012, for the grant of service connection for bilateral hearing loss and tinnitus for issuance of a statement of the case and the increased rating claims were remanded for updated VA examination. The Board finds there has been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). I. Duties to notify and assist As a preliminary matter, the Board has reviewed the claims file and finds there exist no deficiencies in VA’s duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159 (b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). II. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2017). Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran contends he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85 (b). The “pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85 (d) (2017). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (e). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds in any four of the five frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1,000 Hertz, and are 70 decibels or more at 2,000 Hertz. See 38 C.F.R. § 4.86 (2017). In March 2013, the Veteran underwent a hearing examination. The objective evidence showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 55 65 65 LEFT 25 30 50 75 80 The average pure tone threshold was 55 decibels for the right ear and 59 decibels for the left ear. The examiner noted that the Veteran’s speech discrimination score (Maryland CNC Word List) was 92 percent in both ears. Such corresponds to Level I hearing loss in the right ear and Level II hearing loss in the left ear, which equates to a noncompensable rating. See 38 C.F.R. § 4.85, Tables VI and VII. In September 2018, the Veteran was afforded an additional hearing examination. The objective evidence showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 65 70 65 LEFT 35 50 70 80 75 The average pure tone threshold was 63 decibels for the right ear and 69 decibels for the left ear. The examiner noted that the Veteran’s speech discrimination score (Maryland CNC Word List) was 96 percent in the right ear and 94 percent in the left ear. Such corresponds to Level II hearing loss in both ears, which equates to a noncompensable rating. See 38 C.F.R. § 4.85, Tables VI and VII. The Board has carefully reviewed the remaining record in its entirety, but finds no other probative evidence of record showing the Veteran’s hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluations discussed above. The Board has also considered his statements concerning how his hearing loss has affected his life since service. Although the Board finds his statements to be credible, it finds that these factors do not provide a sufficient basis on which to award a compensable rating for bilateral hearing loss. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to a noncompensable disability rating. Given the applicable rating criteria, the Board must base its determination on the results of the pertinent and valid audiology studies. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In this case, as explained above, the numeric designations do not correlate to a compensable rating. As such, the preponderance of the evidence is against the Veteran’s claim for a compensable schedular rating. 2. Entitlement to an initial increased rating in excess of 10 percent for tinnitus. In the March 2013 rating decision, the RO granted service connection for tinnitus and assigned the maximum schedular evaluation (10 percent) for this disability under Diagnostic Code 6260. The Veteran seeks an initial evaluation in excess of 10 percent for tinnitus. However, Diagnostic Code 6260 provides a maximum 10 percent evaluation for tinnitus (whether unilateral or bilateral). 38 C.F.R. § 4.87, Diagnostic Code 6260. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the Court of Appeals for Veterans Claims held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260, which limits a Veteran to a single disability evaluation for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Subsequently, the stay of adjudication of tinnitus rating cases was lifted. Here, the Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for that disability. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award an evaluation in excess of 10 percent or separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Moreover, referral for extraschedular consideration is not warranted. The record reflects the Veteran’s complaints of tinnitus as a constant ringing in his ears and difficulties hearing as a result of his tinnitus. These symptoms, are contemplated by the rating schedule and do not meet the criteria for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). III. Effective Date The Veteran seeks an effective date prior to October 2, 2012, for the grant of service connection for the above listed claims. On October 2, 2012, the Veteran filed a claim of entitlement to service connection for hearing loss. In the March 2013 rating decision, the Veteran’s claim of entitlement to service connection for bilateral hearing loss and tinnitus were granted, effective October 2, 2012. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation (DIC) 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 later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation from service, or else, it is (at the earliest) whenever the Veteran eventually filed a claim. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b)(2). The provisions of 38 U.S.C. § 5101 (a) mandate that a claim must be filed in order for any type of benefit to be paid. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). A “claim” includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). The law regarding informal claims changed, effective March 24, 2015, requiring the use of formal standard claims. This is inapplicable in this case. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). The effective date for an award of benefits based upon new and material evidence is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). A claim, whether “formal” or “informal,” must be “in writing” in order to be considered a “claim” or “application” for benefits. Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Moreover, the Court has explicitly stated that the “mere presence” of a diagnosis of a specific disorder in a VA medical report “does not establish an intent on the part of the Veteran” to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); see MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (VA medical examination reports standing alone can constitute informal claim only with regard to claims that previously have been granted service connection); 38 C.F.R. § 3.155. Accordingly, the mere existence of medical records in a case cannot be construed as an informal claim. Id; Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007), aff’d Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008). Prior to October 2, 2012, there are no other records that could be construed as an intent to file a claim or identification of a benefit sought. (Continued on the next page)   As the record does not contain a formal or informal claim of entitlement to service connection for hearing loss prior to October 2, 2012, the claims of entitlement to an earlier effective date must be denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel