Citation Nr: 21069986 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-00 429A DATE: November 22, 2021 ORDER An effective date prior to February 7, 2018, for the award of a 100 percent rating for service-connected bilateral hearing loss is denied. FINDING OF FACT Entitlement to a 100 percent rating for bilateral hearing loss was not factually ascertainable until February 7, 2018, when medical evidence indicated that the Veteran's disability was manifested by hearing acuity of Level XI, bilaterally. CONCLUSION OF LAW The criteria for an effective date prior to February 7, 2018, for the award of a 100 percent rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2015 by a Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Entitlement to an earlier effective date The Veteran asserts an earlier effective date for the award of a 100 percent rating for his service-connected bilateral hearing loss is warranted, as he has continuously pursued an increased rating for such disability since the award of service connection and he contends that he met the criteria for a 100 percent rating prior to a VA examination which took place on February 7, 2018. By way of background, the Board granted service connection for the Veteran's bilateral hearing loss in a February 2015 decision. That decision was effectuated in a rating decision issued in March 2015, with an initial noncompensable rating percent rating given, effective April 4, 2011, the date his claim was received. In April 2015, the Veteran filed a VA Form 21-0966, Intent to File, and four days later, a claim for an increased disability rating for his service-connected bilateral hearing loss. In May 2015, he underwent a VA examination, and based on the results of such, the noncompensable rating was continued. The Veteran filed a notice of disagreement as to the propriety of the assigned rating in July 2015. In February 2018, he underwent a VA hearing loss examination, at which time it was concluded that he met the criteria for a 100 percent disability rating. He asserts that this rating should go back to April 4, 2011, the date he filed his initial claim for service connection. In support of his claim, the Veteran asserts that his symptomology was the same prior to February 7, 2018 as it was on that date, when he was examined. He also asserts that the May 2015 VA examination, during which his hearing was found to be essentially normal, was inadequate. Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The pertinent statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). In order to warrant an effective date prior to February 7, 2018 for the 100 percent rating, the Board must determine whether it is factually ascertainable that the Veteran's bilateral hearing loss increased in severity so as to warrant a 100 percent rating during the appeal period prior to that date. The Veteran's bilateral hearing loss is currently evaluated under the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6100. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). At the May 2015 VA examination, testing showed that the Veteran's average puretone threshold in the left ear was 66 decibels, and 64 in the right. Speech audiometry showed speech recognition ability of 92 percent in the left ear, and 90 in the right. Applying the criteria set forth in 38 C.F.R. § 4.85 and § 4.86 to these audiometric results result in Level II for the left ear, and Level III for the right, based on Table VI. Per Table VII, a combination of II and III equates to a noncompensable disability rating. At the February 7, 2018 examination, the average puretone threshold in the left ear was 95 decibels, and 92 in the right. Speech audiometry showed speech recognition ability of 16 percent in the left ear, and 12 in the right. These results yield a finding of Level XI in both ears. When these numeric designations are applied to Table VII, the percentage of disability for hearing impairment is 100 percent. Upon review, the Board finds the evidence does not show the Veteran's bilateral hearing loss disability met the criteria for a 100 percent rating at any time during the appeal period prior to February 7, 2018. In this regard, the May 2015 testing showed that the Veteran's hearing met the criteria for a noncompensable rating. It wasn't until the VA examination conducted on February 7, 2018 that it was first noted that the Veteran's puretone and CNC word recognition scores had dropped to levels low enough to warrant the 100 percent rating. The Board acknowledges that the Veteran testified at the August 2021 that he believed that the May 2015 VA examination was inadequate, as it was performed quickly and not in the same manner or perceived thoroughness as he experienced when undergoing private audiological examinations. The Board finds this argument to be without merit. The examination report confirms that the individual that conducted the examination is a state licensed audiologist, and the Veteran has not challenged the competency of the examiner. However, there is also nothing in the examination report to corroborate the Veteran's assertion that the examination was conducted in a manner that was not adequate. The Veteran has not asserted any specific allegation that would call into question the results of the hearing test conducted at the examination, the results of which the Board relies on to assign ratings. Without any specific allegation about the results of the examination, the Board finds that they are reliable. A statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley, 2 Vet. App. at 64-65. Consequently, the Board does not find that the Veteran has demonstrated that the May 2015 audiologist was unqualified or that the record contains clear evidence to support the Veteran's assertion of an inadequate examination protocol that rendered the results unreliable. See generally Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Therefore, the Board finds that the May 2015 VA examiner adhered to standard regulations and procedures in performing the examination to determine the severity of the Veteran's hearing loss. The Board further observes that the Veteran has argued that his hearing levels have been the same since the award of service connection. However, while he is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his audiological symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and performed specific testing to obtain results that could be compared to the rating criteria, to be more persuasive than his own reports regarding the severity of such condition. This is especially true in the case of audiological testing, and the Board reemphasizes that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann, supra. Based on the foregoing evidence, the Board finds that at no time during the appeal period prior to February 7, 2018, did the Veteran's bilateral hearing loss meet the criteria for a 100 percent rating. Consequently, the proper effective date for the assignment of that rating is February 7, 2018, the date it was factually ascertainable that such disability increased in severity so as to warrant the 100 percent rating. As the preponderance of the evidence is against an earlier effective date for a 100 percent disability rating for service-connected bilateral hearing loss, the benefit of the doubt rule is not applicable in this situation. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, an effective date prior to February 7, 2018 is not warranted. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.