Citation Nr: 1806640 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-13 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss. 2. Entitlement to an effective date earlier than June 10, 2010, for the grant of service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Dr. E. H. ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from February 1951 to December 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal of April and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In a September 2015 Board decision, the reduction of the 20 percent rating for bilateral hearing loss, to noncompensable, was found to be improper and the 20 percent rating was restored, effective September 1, 2012. In a November 2015 rating decision, the RO restored the 20 percent disability rating to the service-connected bilateral hearing loss disability, effective September 1, 2012. The Veteran is presumed to be seeking the maximum possible evaluation. See AB v. Brown, 6 Vet. App. 35 (1993) (while a claimant is presumed to be seeking the maximum benefit available under law, the claimant can choose to limit the claim to a lesser benefit). Thus, the issue with respect to the service-connected bilateral hearing loss disability remains on appeal. The Veteran testified before the undersigned at an April 2015 Video Conference hearing. The hearing transcript is of record. In September 2015, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The Board notes that a VA Form 21-22, appointing The American Legion as the Veteran's representative, was received in September 2014. However, correspondence of record indicates that a VA Form 21-22a, appointing an attorney as the Veteran's representative, was received in February 2015. This form, however, was signed by the attorney, but not by the Veteran. Regulations of the Department of Veterans Affairs stipulate that only one service organization, attorney or agent may represent an appellant at any one time on the same issues on appeal. 38 C.F.R. § 14.631. Due to this discrepancy regarding the Veteran's representation, in November 2017, the Board sent the Veteran a letter requesting him to clarify the matter. The Veteran was informed that if he did not clarify this matter and respond to the Board's letter, it would be assumed that he wished to remain represented by The American Legion and the Board would proceed with its appellate review of the claims. To date, the Veteran has not responded to the request for clarification. Therefore, the Board will assume that the Veteran wishes to be represented by The American Legion and will proceed with its adjudication of the appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran has had, at worst, Level IV hearing in the right ear during the appeal. 2. The Veteran has had, at worst, Level VI hearing in the left ear during the appeal. 3. The (re)opened claim of entitlement to service connection for a back disability was not received within one year of the Veteran's discharge from service or until June 10, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met at any time during the appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, 4.86(a), Diagnostic Code 6100 (2017). 2. The criteria for an effective date prior to June 10, 2010, for the grant of service connection for a back disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.1, 3.155, 3.157 (2014); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Furthermore, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of the claims discussed below at this time is warranted. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. VA and private treatment records have been obtained. Increased Rating for Bilateral Hearing Loss Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, 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 disabilities incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. To rate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b) (2017). The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. That average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85 (d) (2017). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the rating 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 poor hearing. The disability rating is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e) (2017). When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000 and 4000 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. When the 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 higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2017). In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled Maryland CNC speech discrimination test and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). In the case of an initial or increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis In a March 1988 rating decision, the RO granted service connection for bilateral hearing loss. A 10 percent rating was assigned, effective December 19, 2007. In June 2010, the Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss. In an October 2010 rating decision, the RO granted an increased rating of 20 percent for bilateral hearing loss, effective June 10, 2010. In February 2012, the Veteran filed another claim for an increased rating for bilateral hearing loss. In an April 2012 rating decision, the RO proposed to reduce the rating for bilateral hearing loss to 0 percent. In a June 2012 rating decision, the RO reduced the rating for bilateral hearing loss to 0 percent, effective September 1, 2012. The Veteran appealed this decision. In an August 2014 rating decision, the RO increased the rating for bilateral hearing loss to 10 percent, effective July 2, 2014. In a September 2015 decision, the Board found that the reduction of the disability rating for bilateral hearing loss from 20 to 0 percent was not proper, and the 20 percent disability rating was restored, effective September 1, 2012. The RO confirmed this decision in a November 2015 rating decision, and restored the 20 percent rating for bilateral hearing loss, effective September 1, 2012. The Veteran contends that an increased rating is warranted. The Veteran was afforded a VA audiological examination in June 2010. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 45 65 70 75 63.75 Left (db): 30 70 90 85 68.75 Speech audiometry results revealed speech recognition ability of 82 percent in the right ear and 78 percent in the left ear. These values meet the criteria of 38 C.F.R. § 4.86(b) for an exceptional pattern of hearing impairment in the left ear. Applying these values to the rating criteria results in a numeric designation of level IV in the right ear and level VI in the left ear. See 38 C.F.R. § 4.85, Table VI and Table VIA (2017). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 20 percent. The Veteran was afforded another VA examination in February 2012. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 45 70 75 80 67.5 Left (db): 40 70 95 90 73.75 Speech audiometry results revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left ear. These values do not meet the criteria of 38 C.F.R. § 4.86(a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level III in the right ear and level III in the left ear. See 38 C.F.R. § 4.85, Table VI (2017). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent. However, as noted in the Board's September 2015 remand, the February 2012 VA examiner did not consider the Veteran's ability to function under the ordinary conditions of life and work and, as such, the February 2012 audiological examination report is inadequate for the purpose of reducing the evaluation for the service-connected bilateral hearing loss. Private treatment records from the Stillwater Medical Group show the following audiometric findings in June 2012: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 50 65 70 75 65 Left (db): 35 75 100 95 76 Speech audiometry results revealed speech recognition ability of 68 percent in the right ear and 72 percent in the left ear. These values do not meet the criteria of 38 C.F.R. § 4.86(a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level V in the right ear and level VI in the left ear. See 38 C.F.R. § 4.85, Table VI (2017). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 30 percent. The speech recognition scores were not obtained using the Maryland CNC lists. See September 2015 records from the Stillwater Medical Group. Therefore, the results are invalid for evaluation purposes. The Veteran was afforded his most recent VA examination in July 2014. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 50 65 70 75 65 Left (db): 40 75 100 95 78 Speech audiometry results revealed speech recognition ability of 82 percent in the right ear and 78 percent in the left ear. These values do not meet the criteria of 38 C.F.R. § 4.86 (a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level IV in the right ear and level V in the left ear. See 38 C.F.R. § 4.85, Table VI (2017). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 10 percent. In January 2016, a VA opinion was obtained relative to the functional effects of the Veteran's hearing loss on his daily activities and in an occupational setting. The VA examiner opined that people with the Veteran's pattern of hearing loss, without the use of hearing aid or other amplification devices, usually have the following difficulties: listening accurately in presence of noise, understanding speech from a distance greater than 20 feet, understanding speech over the telephone. He concluded that depending on the nature of the work, these limitations could cause difficulty in any work setting. However, the examiner also noted that it is typical for persons with this pattern of hearing to use hearing aids while operating a vehicle. He noted further that while it is typical to have difficulty while conversing, that problem is usually improved when using appropriate hearing aids. Finally, the examiner concluded that the Veteran's good response to speech: word recognition of 82% right ear and 78% left ear suggests that his potential for understanding speech is good in any quiet environment, especially when using his hearing aids." Accordingly, the Board finds that there has been no point during the appeal period when the Veteran's hearing loss disability met or approximated the criteria for a rating in excess of 20 percent. The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, does not support assigning different percentage disability ratings during the period in question. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.7, 4.21 (2017). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Earlier Effective Date Claim Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation 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 the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). As pertinent to the current 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). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2014); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his 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 veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2014). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157 (2014). Evidence from a private physician or layman will also be accepted as an informal claim for increased benefits, effective from the date received by VA. 38 C.F.R. § 3.157(b)(2) (2014). Medical records cannot constitute an initial claim for service connection; rather there must be a record showing some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet App 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). Analysis The Veteran filed his initial claim for service connection for a back disability in April 1962. In a December 1962 rating decision, the RO denied service connection for a back disability. The Veteran did not appeal this decision and it became final. 38 U.S.C. § 7104. In March 1988, the Veteran filed a petition to reopen his claim of service connection for a back disability. In May and October 1988 rating decisions, the RO denied service connection for a herniated lumbar disc. The Veteran appealed the October1988 denial to the Board, and in March 1989, the Board denied the Veteran's claim for service connection for a back disability. This decision became final. 38 U.S.C. § 7104. In October 2008, the Veteran filed another petition to reopen his claim of service connection for a back disability. In a December 2008 rating decision, the RO denied service connection for a lumbar strain. The Veteran did not appeal this decision and it became final. 38 U.S.C. § 7104. On June 10, 2010, VA received the Veteran's petition to reopen his claim for service connection for a back disability, including lumbar strain, herniated lumbar disc L4-5 and L1, congenital deformity of lumbar vertebra, and fracture of L1 vertebra. In an April 2012 rating decision, the RO granted service connection for a herniated lumbar disc, L4-5 with degenerative disc disease, effective June 10, 2010, the date the Veteran's request to reopen his claim of entitlement to service connection for a back disability was received. The Veteran filed a notice of disagreement to this decision, asserting that the effective date for his low back disability should be in December 1962, the date he filed his original claim for service connection for a back disability, which he believes would have been granted had the RO adequately reviewed his claims file showing a back injury in service and the overabundance of medical evidence of a diagnosed back disability throughout the record. See May 2012 statement from E.W.H., Ph.D., June2012 and February 2013 statements from the Veteran and May 2013 VA Form 9. The Board notes that although the Veteran's claim was initially denied in December 1962 because there was no evidence on examination of a back disability; it was subsequently denied because there was no medical opinion linking the Veteran's diagnosed back disability and his injury in service. The Veteran did not submit a claim of entitlement to service connection for a back disability within one year of his separation from service. The Veteran does not contend otherwise. Thus, there is no basis for an effective date based on a claim being filed within one year of separation for the award of service connection for this disability. 38 C.F.R. 3.400(b)(2)(i). The Veteran's original 1962 claim of entitlement to service connection for a back disability, was denied in the December 1962 rating decision. As noted, he did not appeal the December 1962 rating decision and that decision is final. Furthermore, in a November 2015 rating decision, the RO determined that there was no clear and unmistakable error (CUE) found in the December 1962 rating decision, and the Veteran did not appeal the November 2015 rating decision. See November 2015 rating decision. Moreover, no evidence related to reopening the claim for a back disability was received within one year of the December 1962 rating decision; thus, there is no basis for awarding an earlier effective date under 38 C.F.R. 3.156(b) (2017). Accordingly, the 1962 claim for a back disability was finally adjudicated in the 1962 rating decision and is not pending. Thus, this claim cannot serve as the date of claim for the grant of service connection for a back disability. See 38 C.F.R. 3.160 (2017) (pending claim is defined as an application which has not been finally adjudicated). Additionally, the Board notes that the Veteran's claim was reopened and granted in 2012 based on the receipt of a positive VA medical opinion, and not the receipt of relevant service department records, so an earlier effective date based on 38 C.F.R. 3.156(c)(3) (2017) is not appropriate. After the October 2008 rating decision, the Veteran did not file a petition to reopen his claim of entitlement to service connection for a back disability, either formal or informal, until June 10, 2010. In this case entitlement arose prior to the date of claim. Because the date of claim is later, that date controls the effective date of service connection. Furthermore, the post-service treatment records cannot constitute a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1325 (Fed. Cir. 2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). Consequently, June 10, 2010, the date the Veteran's current claim to reopen was received, is the earliest possible effective date for service connection for a back disability. 38 C.F.R. § 3.400(q)(2). In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER A rating in excess of 20 percent for bilateral hearing loss is denied. An effective date prior to June 10, 2010, for the grant of service connection for a low back disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs