Citation Nr: 1807505 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-20 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling, to include the issue of a compensable disability rating for the period prior to December 2012. 2. Entitlement to an effective date earlier than December 27, 2004 for a grant of service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The issue of service connection for an acquired psychiatric disorder secondary to a service-connected bilateral hearing loss disability and/or service-connected tinnitus disability has been raised by the record during the Veteran's July 2016 BVA Travel Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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). The Veteran served on active duty October 1963 to October 1965, and also had service with the Army Reserve. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho in which the RO effectuated the Board's grant of service connection for bilateral hearing loss and tinnitus. The RO assigned the Veteran a 10 percent disability rating for his tinnitus and a noncompensable (0 percent) disability rating for his bilateral hearing loss effective December 27, 2004 (the date VA received the Veteran's application for compensation). In November 2012, the Veteran's representative submitted a notice of disagreement (NOD) as to the assignment of a noncompensable rating for the Veteran's bilateral hearing loss and the assignment of December 27, 2004 as the effective date. Thereafter, the Veteran was granted 10 percent evaluation for his hearing loss, effective December 10, 2012. Thus, the Veteran's request for an increased rating for bilateral hearing loss is staged, in that the severity of the Veteran's hearing loss during the time frame on appeal must be adjudicated initially from (1) December 27, 2004 to December 9, 2012 and then from (2) December 9, 2012 to the present. In July 2017, the Veteran testified during a Travel Board hearing before the undersigned Veteran's Law Judge. A transcript of this hearing has been associated with the claims file. This appeal was processed using the Veteran's Benefits Management System (VBMS), Caseflow Reader and Legacy Content Manager. The issue of entitlement to an initial increased rating in excess of 10 percent for bilateral hearing loss from December 9, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. At worst, during the time frame from December 27, 2004 to December 9, 2012, the Veteran manifested Level I hearing in his right ear and Level II hearing in his left ear. 2. The earliest communication from the Veteran that can be interpreted to constitute a formal or informal claim for bilateral hearing loss is dated December 24, 2004. CONCLUSIONS OF LAW 1. The schedular criteria for an initial compensable disability rating for bilateral hearing loss prior to December 2012, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1 - 4.14, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for entitlement to an effective date prior to from December 27, 2004 for a grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5101 (a), 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a Compensable Rating for Bilateral Hearing Loss The Veteran has been assigned an initial noncompensable disability rating during the time frame from December 27, 2004 to December 9, 2012 for his service-connected bilateral hearing loss. He seeks an increased rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where 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. In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. The Board observes that Table VIA (set forth below with Table VI) is used when the examiner certifies that the use of a 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. 38 C.F.R. § 4.85 (c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I, for essentially normal acuity, through XI, for profound deafness. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. Utilizing the tables set forth above, the Board finds that the evidence in this case does not support the assignment of a compensable disability rating for bilateral hearing loss during the time frame prior to December 9, 2012. In this regard, the Board observes that the Veteran was afforded an audiology evaluation in April 2005. The Veteran's puretone thresholds were reported to be the following: HERTZ 1000 2000 3000 4000 RIGHT 15dB 20dB 40dB 85dB LEFT 20dB 45dB 90dB 95B These findings were interpreted as showing bilateral sensorineural hearing loss with word recognition scores the were 96 percent correct for the right ear and 92 percent correct for the left ear. Utilizing the numbers set forth above, the Veteran's average right ear hearing threshold in decibels in April 2005 was 40dB (15dB + 20dB + 40dB + 85dB = 160/4 = 40dB loss). The Veteran's average left ear hearing threshold in decibels was 63dB (20dB + 45dB + 90dB + 95dB = 250/4 = 62.50dB loss). The Veteran's Maryland CNC word list showed 96 percent correct in the right ear and 92 percent correct in the left ear. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I hearing acuity in the right ear and Level II hearing acuity in the left ear. Using Level I hearing and Level II hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant the assignment of a noncompensable disability rating. In July 2008, the Veteran was afforded another VA audiological examination. The report of this examination reveals that the Veteran had the Veteran had average puretone thresholds of 47.5 dB for the right ear and 68.75dB for the left ear. The Veteran's Maryland CNC word list showed 92 percent correct in the right ear and 88 percent correct in the left ear. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I hearing acuity in the right ear and Level III hearing acuity in the left ear. Using Level I hearing and Level II hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant the assignment of a noncompensable disability rating. Based upon the foregoing, the Board is of the opinion that the Veteran's service-connected bilateral hearing loss, at worst, warrants the assignment of a noncompensable disability rating prior to December 2012. In reaching this decision, the Board has contemplated the application of 38 C.F.R. § 4.86 (exceptional patterns of hearing impairment). However, the Veteran's hearing loss does not meet the criteria under that section. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran's hearing loss has not approximated the criteria for the assignment of a compensable disability rating. In addition, the Board has considered the application of an extraschedular rating for the Veteran's bilateral hearing loss for the time frame December 27, 2004 to December 9, 2012. It appears to the Board that the Veteran specifically seeks an extraschedular rating for his bilateral hearing loss during the time frame from December 2012 to the present, pursuant to argument made by the Veteran's representative during his July 2016 BVA hearing and because evidence supporting an extraschedular rating is dated after 2012 (i.e., the submission of lay statement attesting to the severity of the Veteran's bilateral hearing loss and tinnitus in the "real world" and the effect that these disabilities have on his ability to maintain employment). See BVA hearing transcript, p. 12. In terms of the evidence in the claims file submitted prior to December 9, 2012, the Board finds that the picture presented of the Veteran's bilateral hearing loss (in terms of his evaluations during his April 2005 and July 2008 audiological examinations and medical opinions of record) is not reflective of being so unusual or exceptional in nature as to render the schedular rating inadequate. Rather, when comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a noncompensable rating. Notably, the rating schedule as a general matter is designed to compensate for the effects of hearing impairment in all spheres of a claimant's daily life, including at work and at home. See 38 C.F.R. §§ 4.1, 4.15. With specific regard to hearing loss, the rating schedule for evaluating a hearing impairment specifically includes a special section for evaluating "[e]xceptional patterns of hearing impairment." See 38 C.F.R. § 4.86. This section was added "because the speech discrimination test may not reflect the severity of communicative functioning these veterans experience." 64 Fed. Reg. 25200, 25203 (1999). "This provision was meant to compensate for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise. VHA found that when this pattern of impairment is present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment." Id.; see also 59 Fed. Reg. 17295 ("While results of speech discrimination tests with this type of hearing loss in a controlled setting are often near normal, they do not reflect the true extent of difficulty understanding speech in the everyday work environment, even with the use of hearing aids."). In view of this, the Board must conclude that the rating schedule for evaluating a hearing impairment was specifically designed to compensate for the types of functional effects the instant Veteran is describing. See 38 C.F.R. § 4.86. Referral for extraschedular consideration cannot be made on this basis. Claim of Entitlement to an Earlier Effective Date Turning to the Veteran's claim of entitlement to an effective date prior to December 27, 2004 for service connection for bilateral hearing loss, the Board observes that the first document in the claims file indicating the Veteran's intention of filing a claim for service connection is dated December 24, 2004, the date the Veteran submitted his VA application for compensation. Generally, the effective date of an award of a claim is 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. A claim is 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). Neither the Veteran nor his representative have provided a specific date or referenced any specific document upon which the Veteran bases his earlier effective date claim. The Board's review of the claims file reveals a private audiological report dated in April 2002. That same report, with 4 pages of records, appears again in the electronic file with dates along the top portion of 4 of the 6 pages indicating the copies date from June 2004. The 6th page is itself dated in August 2003. No correspondence of any form or other documents from the Veteran indicating his intent to apply for service connection for bilateral hearing loss or tinnitus as accompanies these records. In December 2004, the RO received an application for compensation (VA Form 21-526) where the Veteran sought service connection for hearing loss. This document does not mention the audiology reports and records dated in 2002, 2003 and 2004. The above-referenced documents dated prior to December 2004, standing alone without any additional communication, cannot reasonably be interpreted to constitute a formal or informal claim for bilateral hearing loss, nor has the Veteran argued otherwise. Given the foregoing, the earliest possible effective date for the grant of service connection of the Veteran's bilateral hearing loss is December 2004. See 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA."). Therefore, the Veteran's request for an effective date earlier than in December 2004 for service connection for hearing loss must be denied. ORDER An initial compensable disability rating for bilateral hearing loss from December 27, 2004 to December 9, 2012 is denied. An effective date earlier than December 27, 2004 for a grant of service connection for bilateral hearing loss is denied. REMAND Turning to the Veteran's claim of entitlement to an initial increased rating in excess of 10 percent for bilateral hearing loss from December 9, 2012, the Board observes that during his July 2015 BVA Travel Board hearing, the Veteran testified that his service-connected bilateral hearing loss disability had worsened and that he was willing to attend a new VA examination to ascertain the current severity of his disability. BVA hearing transcript, pgs. 11-12. Based on the Veteran's testimony of worsening symptomatology, and the fact that his last VA examination related to his bilateral hearing loss took place in April 2015, the Board finds that he should be afforded another VA examination to determine the current severity of his service-connected bilateral hearing loss disability. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss disability. 2. After undertaking any other development deemed appropriate, the AOJ should readjudicate the issue on appeal. If the benefit sought is not granted, the AOJ should issue a supplemental statement of the case and provide the Veteran, and his representative, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs