Citation Nr: 1808679	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-56 998	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to an effective date earlier than July 31, 2015 for the increased evaluation of 10 percent for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Lavan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1943 to April 1946 and from September 1950 to December 1951.   

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.   

This matter came before the Board in June 2017, at which time it was remanded to obtain a January 2015 VA audiogram.  The audiogram was associated with the claims file in August 2017; accordingly, no further development is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998).

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. VA received the Veteran's claim for an increased rating for bilateral hearing loss on July 31, 2015.  The RO granted a 10 percent rating, effective July 31, 2015, in a November 2015 rating decision. 

2. VA medical records from January 25, 2015, within one year of the Veteran's claim filing, document a factually ascertainable increase in hearing loss. 


CONCLUSION OF LAW

The criteria for entitlement to an earlier effective date of January 25, 2015, for the 10 percent disability evaluation for bilateral hearing loss have been met.  38 U.S.C. §§ 5110 (2012); 38 C.F.R. § 3.400 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that he is entitled to an effective date earlier than July 31, 2015 for the 10 percent disability rating awarded in the November 2015 rating decision. 

The general rule governing effective dates for awards of increased compensation is that the effective date "shall not earlier than the date of receipt of the application thereof."  38 U.S.C. § 5110(a).  If the increase occurred within one year prior to the claim, the increase is effective as of the date it was "factually ascertainable."  38 C.F.R. § 3.400(o)(1)(2).  If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim.  See id.; Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("[T]he plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.").

The claims file shows that VA received the Veteran's claim for an increased rating for bilateral hearing loss on July 31, 2015.  There are no earlier filings that could be construed, even in the broadest sense, as a claim for an increased rating for the bilateral hearing loss disability.  See EF v. Derwinski, 1 Vet. App. 324, 326 (1991).  Importantly, the Veteran does not allege he filed an earlier claim. 

The Board finds, however, that VA medical records reflect a factually ascertainable increase in hearing loss within the one year prior to his July 2015 claim filing.  The Veteran underwent an audiological evaluation for his hearing aids on January 25, 2015, which revealed the following pure tone thresholds, in decibels: right ear - 30 (500 Hz), 40 (1000 Hz), 50 (2000 Hz), 60 (3000 Hz), and 70 (4000 Hz); and left ear - 35 (500 Hz), 40 (1000 Hz), 60 (2000 Hz), 65 (3000 Hz), and 75 (4000 Hz).  Similarly to the October 2015 VA examination results, the average pure tone thresholds were 56 decibels in the right ear and 60 decibels in the left ear and speech recognition testing revealed 80 percent in the right ear and 72 percent in the left ear.  

The evaluation utilized the CID W-22 list, rather than the Maryland CNC list, for the controlled speech discrimination test, as required by 38 C.F.R. § 4.85(a).  The effective date for an increased rating for hearing loss, however, "is predicated on when the increase in the level of hearing loss can be ascertained," not the date a Maryland CNC speech discrimination test is administered.  Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (finding that an earlier effective date for an increased rating was warranted where the evidence showed that the results of private hearing tests from 2009 and 2010 with no Maryland CNC test results were determined by a medical examiner to be consistent with the June 2013 Maryland CNC tests).  Similarly to Swain, the Board finds that the January 2015 results are consistent with the subsequent October 2015 VA examination results, upon which the Veteran's increased rating award was based.  Therefore, resolving all doubt in his favor, the Board finds that an earlier effective date of January 25, 2015 for the 10 percent rating is warranted and the claim is granted. 


ORDER

Entitlement to an effective date of January 25, 2015 for the increased evaluation of 10 percent for the service-connected bilateral hearing loss is granted.


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs