Citation Nr: 21067737 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-63 109 DATE: November 5, 2021 ORDER Entitlement to an initial compensable rating prior to November 15, 2018, a rating in excess of 10 percent from November 15, 2018 to July 26, 2021, and a rating in excess of 20 percent from July 26, 2021, for service-connected bilateral hearing loss is denied. Entitlement to an effective date earlier than November 12, 2014, for the grant of service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's hearing acuity across multiple tests has not been shown to be productive of hearing loss warranting increased ratings. 2. The November 2006 rating decision that denied service connection for bilateral hearing loss became final; the evidence of record does not show that a formal or informal claim for service connection for bilateral hearing loss was received prior to November 12, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating prior to November 15, 2018, a rating in excess of 10 percent from November 15, 2018 to July 26, 2021, and a rating in excess of 20 percent from July 26, 2021, for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to an effective date earlier than November 12, 2014, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from January 1970 to March 1971. This appeal comes to the Board of Veterans' Appeals from a December 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues in August 2019 and May 2021 for further development. While on appeal, in an August 2021 rating decision, the RO increased the evaluation for bilateral hearing loss to 20 percent from July 26, 2021 (date of VA examination). This is not a full grant of benefits because the evaluation awarded is not the maximum benefit allowed by law and regulation. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the issue of entitlement to an increased rating for bilateral hearing loss is still on appeal. Further, as reflected in the discussion section that follows, the Board finds substantial compliance with its remand instructions. 1. Entitlement to an initial compensable rating prior to November 15, 2018, a rating in excess of 10 percent from November 15, 2018 to July 26, 2021, and a rating in excess of 20 percent from July 26, 2021, for service-connected bilateral hearing loss. Increased ratings are not warranted for the Veteran's service-connected bilateral hearing loss for any period on appeal. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Turning to the evidence of record, in May 2015, the Veteran was afforded a VA examination for his hearing. The Veteran was diagnosed with mixed hearing loss and sensorineural hearing loss in the right ear and left ear. The Veteran reported that he had trouble hearing people and heard things wrong. The Veteran's Maryland CNC test scores were 92 percent in the right ear and 80 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 60 65 70 60 LEFT 45 60 65 65 58.75 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level IV in the left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. In May 2018, the Veteran had a private audiology evaluation with Dr. L.R.C. Dr. L.R.C. reported that the Veteran had moderate bilateral hearing loss with a puretone average of 48 decibels in the right ear and 41 decibels in the left ear. In November 2018, the Veteran was afforded a VA examination for hearing loss. The Veteran was diagnosed with sensorineural hearing loss in the right ear and the left ear. The Veteran complained that he had difficulty hearing and understanding in all situations. He could not hear normal conversation, TV, radio, or from a distance. The Veteran's Maryland CNC test scores were 80 percent in the right ear and 76 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 60 65 60 61.25 LEFT 45 65 75 75 65 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level IV in the left ear. However, in the right ear, the results may be applied to Table VIA, which yield a numeric designation of Level IV in the right ear. Since this numeral is the same as the numeral calculated using Table VI, it will not make a difference which numeral is used. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 10 percent rating under Diagnostic Code 6100. In July 2021, the Veteran was afforded a VA examination for his service-connected bilateral hearing loss. The VA examiner diagnosed the Veteran with sensorineural hearing loss in the right and left ear. The Veteran reported that he could detect sounds, but he could not understand, even with hearing aids. The Veteran's Maryland CNC test scores were 72 percent in the right ear and 70 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 60 75 60 LEFT 40 60 70 75 61 Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level V in the left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 20 percent rating under Diagnostic Code 6100. On his May 2020 VA Form 9, the Veteran argued that the audio examinations in May 2015 and November 2018 were so totally different that he questioned the accuracy of the examinations. However, the Board finds that all the VA examinations of record, to include the examinations in May 2015, November 2018, and July 2021, are adequate for rating purposes. On each of the VA examinations, the examiners noted that the puretone test results were valid for rating purposes. The VA audio evaluations were performed by well-trained clinicians who conducted necessary tests and reported symptoms and findings. Therefore, the VA examinations are valid for rating purposes. As for the private audiology evaluation performed by Dr. L.R.C. in May 2018, the Board finds that this evaluation is not adequate for rating purposes. The average puretone hearing loss was less than the average noted on the other VA examinations. Thus, this appears to be an outlier. Additionally, the Maryland CNC test results were not reported. Moreover, the Veteran was subsequently given a VA examination in November 2018 that provides more adequate results regarding the Veteran's hearing loss. After a thorough review of the lay and medical evidence, the Board finds that increased ratings for the entire appeal period is not warranted for the Veteran's service-connected bilateral hearing loss. The Board has considered the Veteran's lay statements regarding functional impact of his hearing loss, which included difficulty hearing in certain environments and situations. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (VA audiologists conducting hearing examinations are required to fully describe the functional effects caused by a hearing disability because merely dictating objective test results does not adequately describe the effect of a hearing disability on a veteran's occupational functioning and daily activities); cf. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the ability to hear or understand speech or to hear other sounds in various contexts is contemplated by the schedular rating criteria). As the results of the objective testing do not demonstrate that the Veteran's hearing more closely approximates the levels required for an increased rating, increased ratings for the Veteran's bilateral hearing loss must be denied. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 2. Entitlement to an effective date earlier than November 12, 2014, for the grant of service connection for bilateral hearing loss. The Veteran argues that he should have been service-connected back in 2006 around the time the Veteran filed his original his claim. See May 2020 VA Form 9. The Board finds that an earlier effective date for the award of service connection for bilateral hearing loss is not warranted. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. If the claim is received within 1 year after separation from service, then the effective date shall be the day following separation from active service or date entitlement arose; otherwise, the effective date shall be the date of receipt of the claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The effective date of an award based on an initial claim, or supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof. 38 U.S.C. § 5110. VA must look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits. VA has a duty to fully and sympathetically develop the veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151. 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). Again, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1(p), 3.155(a). In short, the essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases, the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. § 3.400(r), 3.400(q)(2); see Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332, 340 (1995). Initially, on August 23, 2005, the Veteran filed an informal claim for service connection for bilateral hearing loss. A November 2006 rating decision denied service connection for bilateral hearing loss. The Veteran did not appeal the rating decision within the applicable time period, nor was any new and material evidence received within a year of notification of the decision. Therefore, the November 2006 rating decision became final. On November 12, 2014, the Veteran filed an informal claim to reopen his claim for service connection for bilateral hearing loss. In a December 2018 rating decision, the RO granted service connection for bilateral hearing loss with an evaluation of 0 percent effective November 12, 2014 and an evaluation of 10 percent effective November 15, 2018. Subsequently, the Veteran filed a notice of disagreement and perfected his appeal. In this case, an effective date earlier than November 12, 2014, for the grant of service connection for bilateral hearing loss is not warranted. The November 2006 rating decision became final because the Veteran did not submit any new and material evidence or appeal that decision. Since then, there had been no evidence of record indicating that the Veteran intended to file a claim (no informal or formal claims of entitlement for his disability). It was not until November 12, 2014, that the Veteran filed to reopen his claim for service connection for bilateral hearing loss. Therefore, November 12, 2014 is the date the Veteran filed his claim and, thus, also the effective date. After a thorough review of all the evidence of record, the Board finds that an effective date earlier than November 12, 2014, for the grant of service connection for bilateral hearing loss is not warranted. The RO has assigned the earliest possible effective date under the law. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.