Citation Nr: 20003281 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-15 486 DATE: January 14, 2020 ORDER Entitlement to an initial compensable evaluation for service-connected left ear hearing loss is denied. Entitlement to an earlier effective date for the grant of service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had compensable left ear hearing loss at any time during or approximate to the pendency of the claim. 2. The first communication from the Veteran that sought service connection for left ear hearing loss was received on October 18, 2017; no submission received prior to that date can be reasonably construed as a claim for benefits. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an earlier effective date have not been met for the award of service connection for left ear hearing loss. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1966 to February 1989. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that upon request by the Veteran’s attorney, a 90-day extension request to submit additional evidence was granted in this Veteran’s case. Neither the Veteran nor his attorney has submitted any additional evidence. The Veteran was granted service-connection for left ear hearing loss with a noncompensable rating in the RO’s November 2017 rating decision. The Veteran timely appealed for a compensable rating, as well as an earlier effective date for the award of service connection. Effective Date The Veteran seeks an earlier effective date prior to October 18, 2017 for the award of service connection for left ear hearing loss. See December 2017 Notice of Disagreement. 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. The effective date of an award of disability compensation based on new and material evidence under 38 C.F.R. § 3.156 (other than service department records) which is received within the appeal period or prior to the appellate decision shall be as though the former decision had not been rendered. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1). In cases where the evidence is received after a final disallowance, the effective date shall be 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). Similarly, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160 (d). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160 (e). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. 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 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), 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. The Veteran makes no specific contentions as to why he is entitled to an earlier effective date for the award of service connection for left ear hearing loss, but did contest the awarded date per his December 2017 Notice of Disagreement. A review of the claims file indicates that the Veteran initiated a claim for service connection for left ear hearing loss on October 18, 2017. A November 2017 rating decision subsequently granted service connection for left ear hearing loss. Under regulations in effect prior to March 24, 2015, any communication or action indicating an intent to apply for benefits could be considered an informal claim as long as it identified the benefit sought. 38 C.F.R. § 3.155(a). Here, the Board notes that there are no communications from the Veteran, either formal or informal, that were received by the VA prior to March 24, 2015, that evinced a belief that his left ear hearing loss was related to service. Thus, the VA did not receive the Veteran’s application for service connection for left ear hearing loss until October 18, 2017, many years post-service separation. Based on that submission, a November 2017 rating decision granted service connection for left ear hearing loss, effective October 18, 2017. A review of the record reflects that no claim, formal or informal, expressing a belief to entitlement to service connection for left ear hearing loss was received by the VA prior to October 18, 2017. Although the Board has considered the Veteran’s claim, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. While the disability itself may have manifested earlier, this does not decide the effective date in this case; the date of claim does. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant’s claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. §§ 3.400, and no effective date for the award of service connection earlier than October 18, 2017 (date of receipt of claim for service connection) is assignable, the appeal for an earlier effective date as to the issue of service connection for left ear hearing loss is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that an effective date prior to October 18, 2017, for the award of service connection for left ear hearing loss is not warranted as a matter of law. Service Connection Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). Per the evidence of record, the Veteran underwent a December 2018 VA examination revealing pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 60 80 90 The examination revealed that the Veteran had a Maryland CNC Word List speech recognition score of 88 percent discrimination. Applying the results to Table VI, the findings yield a numeric designation of Level III in the left ear. Entering the resulting numeric designation of Level I for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s left ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). (Continued on the next page)   The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.