Citation Nr: 18139727 Decision Date: 09/28/18 Archive Date: 09/28/18 DOCKET NO. 16-23 431 DATE: September 28, 2018 ORDER Entitlement to an effective date earlier than June 30, 2014, for the award of an initial rating of 10 percent for bilateral hearing loss is denied. Entitlement to an effective date of March 28, 2012, is granted for the award of service connection and an initial rating of 10 percent for tinnitus. FINDINGS OF FACT 1. No communication was received from the Veteran prior to March 28, 2012, that may be construed as a formal or informal claim for entitlement to service connection for bilateral hearing loss or tinnitus. 2. The competent evidence of record reflects that, prior to June 30, 2014, the Veteran’s bilateral hearing loss was manifested by no worse than Level VII hearing in the right ear and no worse than Level I hearing in the left ear. 3. The Veteran met the requirements for entitlement to service connection for tinnitus and an initial rating of 10 percent as of the date of the March 28, 2012 claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than June 30, 2014, for the award of the 10 percent initial rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to an effective date of March 28, 2012, for the award of service connection and the 10 percent initial rating for tinnitus have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1966 to October 1967. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Effective Date The effective date for an award of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b). Regulations that were in effect prior to March 24, 2015, required that an informal claim “must identify the benefit sought.” See 38 C.F.R. §§ 3.155, 3.160 (2014). The regulations also provided that a claim may be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (2014). The regulations in effect since March 24, 2015, require that claims be submitted on an application form prescribed by the Secretary and do not allow for informal claims not submitted on such a form. See 38 C.F.R. §§ 3.155, 3.160 (2015). The Veteran’s appeal was pending at the time that the regulations changed. The Board will apply the regulations in effect prior to March 24, 2015, as they allowed for informal claims and are therefore more favorable to the Veteran. In this case, the evidence received prior to March 28, 2012, does not reference hearing loss or tinnitus, and cannot reasonably be interpreted as a claim for entitlement to service-connected disability compensation benefits for those disabilities. The VA Form 21-526, Veteran’s Application for Compensation and Pension, received on March 28, 2012, is the earliest dated evidence of record that may reasonably be interpreted as a claim for entitlement to service connection for hearing loss and tinnitus. In that regard, the Board acknowledges the Veteran’s assertion that he has “been claiming these conditions since 2008” and has “experienced tinnitus for many years”, and his representative’s observation that a December 2000 private treatment record notes tinnitus. However, the record does not include any correspondence received prior to March 28, 2012, that may reasonably be interpreted as a claim for benefits. Therefore, there is no basis in the record for finding that a claim for entitlement to service connection for hearing loss or tinnitus was submitted or received in or around 2008. In addition, as discussed above, the effective date for an award of service connection will be the date of the claim or the date entitlement arose, whichever is later. The regulations clearly define what constitutes a claim for VA compensation and pension benefits. The Board acknowledges that the record includes a December 2000 private treatment record that notes complaints of tinnitus and audiometric testing results indicative of a hearing loss disability for VA purposes. However, the mere notation of a disability in a medical record does not meet the legal criteria for an informal claim for VA benefits. See 38 C.F.R. § 3.1(p) (2014). Therefore, the December 2000 private treatment record and the Veteran’s recollections of having experienced tinnitus for many years prior to March 2012 do not establish a basis for awarding effective dates prior to March 28, 2012. With regard to the Veteran’s tinnitus, the Board observes that the regional office established an effective date of June 30, 2014, for the award of service connection and an initial rating of 10 percent based on receipt of a “claim to reconsider service connection for this condition on that date.” See May 2016 Statement of the Case. A review of the record reveals that VA received from the Veteran a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on June 30, 2014, seeking “Increase tinnitus, currently 0%”. That form was received within one year of notice of a July 2013 rating decision that denied the claim for entitlement to service connection for tinnitus and a November 2013 rating decision that reconsidered and again denied the claim. In addition, the Board finds that the form may reasonably be interpreted as a notice of disagreement with the denial of entitlement to service connection for tinnitus, as it conveys disagreement with that decision. The Board notes that regulations in effect at that time did not require that a notice of disagreement be filed on a form provided by the Agency of Original Jurisdiction. See 38 C.F.R. § 20.201 (2014). Accordingly, the Board finds that the Veteran timely appealed the denial of the original March 28, 2012 claim for entitlement to service connection for tinnitus, that the current appeal arises from that claim, and that March 28, 2012, is the earliest date that service connection may be established for that disability. In view of the foregoing, the Board concludes that March 28, 2012, the date VA received the Veteran’s original claim for entitlement to service connection for hearing loss and tinnitus is the earliest date that service connection may be awarded for those disabilities, and the earliest date for establishment of an initial rating for those disabilities. 1. Entitlement to an effective date earlier than June 30, 2014, for the award of a 10 percent initial rating for bilateral hearing loss The Veteran seeks entitlement to an effective date earlier than June 30, 2014, for the award of a 10 percent initial rating for bilateral hearing loss. The earliest date a 10 percent rating may be awarded for that disability is March 28, 2012, the effective date for the award of service connection for bilateral hearing loss. See 38 C.F.R. § 3.400. For an earlier effective date to be awarded, it must be shown that the criteria for that rating were met on a date prior to June 30, 2014. The Veteran’s service-connected bilateral hearing loss is rated under 38 C.F.R. § 4.85, Diagnostic Code 6100. Under Diagnostic Code 6100, ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average puretone threshold levels at the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Schedule has established eleven auditory acuity levels, designated from level I through level XI. 38 C.F.R. § 4.85(h). To establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use the results of puretone audiometry tests together with the results of controlled speech discrimination tests, using the Maryland CNC test. Results of those tests are charted on Table VI and Table VII as set out in the Schedule. Table VIA, which allows for rating based only on puretone threshold averages, is used instead of Table VI when an examiner certifies that the use of speech discrimination testing is not appropriate or when there is an exceptional pattern of hearing impairment. 38 C.F.R. § 4.85(c). An exceptional pattern of hearing loss occurs when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. § 4.86. Turning to the relevant evidence of record, the Veteran underwent a VA audiological examination in July 2013. The pertinent audiometric results, measured in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 65 70 90 95 80 LEFT 25 25 60 60 42.5 Speech discrimination testing revealed 72 percent discrimination in the right ear and 96 percent discrimination in the left ear right ear. The results of the audiological testing reflect an exceptional pattern of hearing impairment in the right ear, but not in the left ear. See 38 C.F.R. § 4.86. Under Table VIA, the right ear is assigned a Level VII impairment. Under Table VI, the left ear is assigned a Level I impairment. When applied to Table VII, a noncompensable rating is warranted based on the audiological findings at the July 2013 VA examination. There are no audiological testing results of record dating during the relevant period prior to June 30, 2014, other than those found in the July 2013 VA examination report. Accordingly, the competent evidence of record does not reflect that the Veteran’s bilateral hearing loss met the criteria for an initial rating of 10 percent at any time during the relevant rating period prior to June 30, 2014. To the extent that the Veteran contends that his bilateral hearing loss met the criteria for a 10 percent rating prior to June 30, 2014, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as difficulty understanding conversation and subjective changes in his hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to state that his hearing acuity was of a severity sufficient to warrant a particular rating under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board attaches probative weight to the medical records and clinical findings from the skilled medical professional who conducted the audiological testing in at the July 2013 VA examination rather than to the Veteran’s lay witness statements. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that the criteria for a 10 percent initial rating for bilateral hearing loss were met at any time during the relevant rating period prior to June 30, 2014. The Board therefore finds that the criteria for entitlement to an effecitve date earlier than June 30, 2014, for the award of a 10 percent rating for bilateral hearing loss were not met at any time during the relevant period. As the preponderance of the evidence is against the assignment of an initial rating of 10 percent for bilateral hearing loss prior to June 30, 2014, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date earlier than June 30, 2014, for the award of service connection and a 10 percent initial rating for tinnitus The Veteran seeks entitlement to an effective date earlier than June 30, 2014, for the award of service connection and a 10 percent initial rating for tinnitus. As discussed above, the earliest date service connection and the initial rating may be awarded for tinnitus is March 28, 2012, the date his claim for service connection was received. See 38 C.F.R. § 3.400.   Regarding service connection, the Veteran denied any current tinnitus at the July 2013 VA audiological examination. However, the Veteran has since indicated that either he was never asked at that examination whether he had tinnitus or, if he was asked, his response was misreported. In addition, the Board notes that tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran’s assertions on the March 2012 claim that he currently had tinnitus and his later statements that he has had tinnitus for years constitute competent evidence that he had tinnitus at the time of his claim and for years prior to the claim. The Board finds no reason to question the Veteran’s assertions in that regard. Thus, the Board resolves any remaining doubt in the Veteran’s favor, and concludes that the Veteran met the criteria for entitlement to service connection for tinnitus as of the date of his March 28, 2012 claim, and that service connection must therefore be awarded from that date. Regarding the initial rating for the service-connected tinnitus, the condition is rated under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under Diagnostic Code 6260 a maximum 10 percent rating is assigned for recurrent tinnitus, regardless of whether the sound is perceived in one ear, both ears, or the head. The Veteran has competently and credibly stated that he had recurrent tinnitus at the time of his March 28, 2012 claim and for several years prior to that claim. Thus, the Board resolves any remaining doubt in the Veteran’s favor, and concludes that the Veteran met the criteria for entitlement to an initial rating of 10 percent for tinnitus under Diagnostic Code 6260 as of March 28, 2012, the effective date for the award of service connection for that condition, and that an initial 10 percent rating must therefore be awarded from that date. To the extent the Veteran seeks entitlement to an effective date prior to March 28, 2012, for the award of service connection for tinnitus or for the award of an initial   rating of 10 percent for tinnitus, the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel