Citation Nr: 21076013 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 12-30 648A DATE: December 22, 2021 ORDER Entitlement to an effective date prior to December 22, 2009 for the grant of service connection for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to October 2, 2017 is denied. Entitlement to an effective date prior to October 2, 2017 for the grant of eligibility for dependents' educational assistance (DEA) is denied. Entitlement to an effective date prior to October 2, 2017 for the grant of special monthly compensation (SMC) based on deafness in both ears is denied. FINDINGS OF FACT 1. Whether new and material evidence to reopen a claim of entitlement to service connection for bilateral hearing loss was denied by the Board in a February 1997 decision which was not appealed; the Veteran did not submit new and material evidence within one year of the decision, and it became final; his claim to reopen was received on December 22, 2009. 2. Prior to October 2, 2017, the evidence of record indicates the Veteran exhibited, at worst, Level I hearing acuity in his right ear and Level XI hearing acuity in his left ear. 3. The evidence is against finding that the Veteran manifested a permanent total service-connected disability prior to October 2, 2017. 4. Prior to October 2, 2017, there is no evidence of an absence of air and bone conduction upon examination demonstrating that the Veteran had deafness in both ears equal to or greater than the minimum bilateral hearing loss required for a maximum disability rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than December 22, 2009 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.156(c), 3.400. 2. The criteria for an increased rating for bilateral hearing loss prior to October 2, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 3. The criteria for entitlement to an effective date earlier than October 2, 2017 for the grant of DEA have not been met. 38 U.S.C. §§ 1155, 5107, 5113, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. 4. The criteria for SMC based on deafness of both ears were not met prior to October 2, 2017. 38 U.S.C. § 1114(k), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 4.85(g). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1974 to June 1977. He died in May 2019 and his widow has been substituted as the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Board previously remanded this matter to the AOJ for further development in February 2018 and December 2018. This case been advanced on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). By way of procedural history, the Veteran filed a claim to reopen the previously denied issue of entitlement to service connection for bilateral hearing loss in December 2009, which the AOJ denied in August 2010. The Veteran ultimately appealed this denial to the Board, but prior to certification the AOJ issued a September 2012 rating decision granting entitlement to service connection for right ear hearing loss. In a February 2015 decision, the Board granted entitlement to service connection for left ear hearing loss. The Veteran was later assigned a 10 percent rating for bilateral hearing loss effective the date of his claim to reopen. In an October 2017 rating decision, the AOJ granted an increased rating of 100 percent for bilateral hearing loss, and awarded DEA based on a permanent total service-connected disability as well as SMC based on deafness in both ears. 1. Entitlement to an effective date prior to December 22, 2009 for the grant of service connection for bilateral hearing loss The Veteran asserts entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss. The Veteran filed an initial claim of entitlement to service connection for hearing loss in February 1991. This claim was denied by the AOJ and eventually appealed to the Board before being withdrawn in February 1992. A subsequent claim was denied by the AOJ due to a lack of new and material evidence in October 1994. This determination was ultimately appealed to the Board, where it was denied in a February 1997 decision. The Veteran did not appeal this decision or submit new and material evidence within one year. The Veteran filed a December 2009 claim to reopen the issue of entitlement to service connection for bilateral hearing loss, which the AOJ denied in an August 2010 decision. The Veteran appealed this decision to the Board, and while it was pending adjudication the AOJ issued a September 2012 rating decision granting entitlement to service connection for right ear hearing loss, effective the date December 2009 claim to reopen was received. Finally, in a February 2015 decision, the Board granted entitlement to service connection for left ear hearing loss, which the AOJ promulgated in a May 2015 rating decision, assigning the same effective date of December 22, 2009. Section 5110(a) of title 38, U.S. Code, governs the assignment of an effective date for an award of benefits: The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, 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 therefor. 38 U.S.C. § 5110(a). The implementing regulation similarly states that except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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 the later. See 38 C.F.R. § 3.400. For the time period prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim had to identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form was to be forwarded to the claimant for execution. If the application form was received within one year from the date it was sent to the claimant, it would have been considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under the provisions of 38 C.F.R. § 3.156(c), any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim. The Board notes, however, that the service treatment records were of record and cited by the Board when the Veteran was denied service connection in February 1997. The Board's reopening and ultimate grant of entitlement to service connection for left ear hearing loss was based on medical reports from 1997 to 2014. Therefore, no relevant service treatment records were added to the record after the final February 1997 Board decision that would warrant a reconsideration of the final denial. To the extent that the appellant argues that the effective date of service connection for bilateral hearing loss should go back to when the Veteran initially filed his claim, this would represent a prohibited "freestanding claim." Here, any attempt to revisit the prior Board decision and the finality that attached would be no more than a freestanding claim for an earlier effective date. Such a possibility vitiates the rule of finality. Accordingly, to the extent that the Veteran has improperly raised a freestanding claim for an earlier effective date in an attempt to overcome the finality of the prior decision, his appeal will be dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Finally, the Board has considered whether 38 C.F.R. § 3.157(b), in effect prior to March 24, 2015, is applicable. This provision stated that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, the US Court of Appeals for Veterans Claims (Court) has held that this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in §3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Thus, any reference to hearing loss in a VA clinic setting after the 1997 Board denial cannot constitute a formal or informal claim under 38 C.F.R. § 3.157 (b). Sears, 16 Vet. App. at 249. For the reasons set out above, the Board finds against the claim. Here, there was a prior, final denial of the issue at hand followed by a claim to reopen. Under such circumstances, the effective date is governed by the date of receipt of the claim to reopen; December 22, 2009. As the applicable law and regulatory provisions are clear on the issue at hand, the Board concludes that the appeal for an earlier effective date for a grant of service connection for bilateral hearing loss must be denied. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The preponderance of the evidence is against the claim and there is no doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to October 2, 2017 Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's bilateral hearing loss was initially rated as 10 percent prior to the AOJ issuing an October 2017 rating decision granting entitlement to a 100 percent rating from October 2, 2017. As a result, the AOJ also granted SMC and DEA benefits effective this date. The appellant asserts entitlement to a rating in excess of 10 percent for bilateral hearing loss, which is rated under the provisions of 38 C.F.R. § 4.85, DC 6100. The assignment of disability ratings for hearing impairment is 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). Under the criteria of 38 C.F.R § 4.85, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. When the 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. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. The Veteran was afforded a VA audiological examination in October 2010, wherein the audiologist recorded Maryland CNC speech discrimination scores of 96 percent in the right ear and 8 percent in the left ear. The examiner noted that the Veteran's left ear score was possibly unreliable, as he would repeat words and then claim he could not hear them. His pure tone thresholds, in decibels, were as follows: HERTZ 10/10 1000 2000 3000 4000 AVERAGE RIGHT 25 30 25 30 27.5 LEFT 75 90 90 95 87.5 These findings are consistent with Level I hearing in the right ear and Level XI hearing in the left ear. When intersecting the poorer left ear with the right ear, these combined numeric designations result in a 10 percent rating under DC 6100. Although the Veteran manifests an exceptional pattern of hearing loss in the left ear, rating it under Table VIa would not result in a higher Roman numeral. The Veteran was afforded an additional VA audiological examination in October 2012. The examiner noted the test results were valid for rating purposes and recorded Maryland CNC speech discrimination scores of 94 percent in the right ear and 64 percent in the left ear. His pure tone thresholds, in decibels, were as follows: HERTZ 10/12 1000 2000 3000 4000 AVERAGE RIGHT 25 35 35 40 34 LEFT 70 75 80 85 78 These findings are consistent with Level I hearing in the right ear and Level VIII hearing in the left ear. When intersecting the poorer left ear with the right ear, these combined numeric designations result in a 0 percent rating under DC 6100. Although the Veteran manifests an exceptional pattern of hearing loss in the left ear, rating it under Table VIa would not result in a higher Roman numeral. The Veteran was afforded another VA audiological examination in October 2017. The examiner noted the test results were valid for rating purposes and recorded Maryland CNC speech discrimination scores of 24 percent in the right ear and 20 percent in the left ear. His pure tone thresholds, in decibels, were as follows: HERTZ 10/17 1000 2000 3000 4000 AVERAGE RIGHT 40 55 60 70 56 LEFT 70 70 70 80 73 These findings are consistent with Level XI hearing in the right ear and Level XI hearing in the left ear. When intersecting the poorer left ear with the right ear, these combined numeric designations result in a 100 percent rating under DC 6100. Although the Veteran manifests an exceptional pattern of hearing loss in the left ear, rating it under Table VIa would not result in a higher Roman numeral. As noted above, the Veteran was assigned a 100 percent rating from the date of the October 2017 examination. Prior to this date, the criteria for a rating in excess of his initial 10 percent have not been met. The Board acknowledges the appellant's assertion that the Veteran's bilateral hearing loss was more severe than evaluated. However, the Board finds that neither the lay nor medical evidence demonstrates that the criteria for a higher evaluation have been met, and the Board cannot factually ascertain an earlier onset date without supporting audiometric data. In determining the actual degree of disability for hearing loss, the examination findings are most probative of the degree of impairment. As discussed above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, 3 Vet. App at 345. Even with consideration of the Veteran's exceptional pattern of hearing loss under 38 C.F.R. § 4.86, his hearing acuity still warrants at most a 10 percent rating. Accordingly, the rating assigned for the Veteran's bilateral hearing loss disability accurately reflects the degree of his service-connected hearing impairment. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, DC 6100. Additionally, the Board finds the Veteran's symptoms as described were adequately compensated by the rating schedule. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). His 10 percent rating is based on a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, with no interpretive leeway. Lendenmann, 3 Vet. App. at 349. Although the Board sympathizes with the appellant's frustration regarding the Veteran's decreased hearing ability, neither the Board nor the Court itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015) ("Congress precluded the Veterans Court from 're-view[ing] the schedule of ratings for disabilities adopted under section 1155... or any action of the Secretary in adopting or revising that schedule.' 38 U.S.C. § 7252(b). That provision squarely precludes the Veterans Court from determining whether the schedule... substantively violates statutory constraints."). For the foregoing reasons, the preponderance of the evidence is against finding an increased rating for bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to an effective date prior to October 2, 2017 for the grant of eligibility for DEA The Veteran asserts entitlement to an earlier effective date for the grant of DEA. Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, of the United States Code is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. See 38 U.S.C. §§ 3500, 3501; 38 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of DEA exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113(a). In this case, DEA was granted from October 2, 2017, the effective date of the Veteran's grant of a 100 percent disability rating for bilateral hearing loss. As discussed above, the Board has found that the Veteran's hearing loss did not warrant a 100 percent rating prior to this date, and as such entitlement to an earlier effective date for entitlement to DEA under Chapter 35 must be denied as well. Id. 4. Entitlement to an effective date prior to October 2, 2017 for the grant of SMC based on deafness in both ears The appellant asserts entitlement to an earlier effective date for the grant of SMC. A veteran who, as the result of a service-connected disability has suffered loss of use of hearing, to include deafness in both ears, shall receive SMC under the provisions of 38 U.S.C. § 1114(k). The term "loss of use" regarding deafness is defined by 38 C.F.R. § 3.350(a)(5), as "deafness of both ears, having absence of air and bone conduction will be held to exist where examination in a Department of Veterans Affairs authorized audiology clinic under current testing criteria shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule." As noted above, the Veteran was assigned a 100 percent rating from October 2, 2017 for his bilateral hearing loss disability based on the audiometric results obtained on VA examination. He was also assigned entitlement to SMC from this date pursuant to 38 C.F.R. § 3.350 and 38 C.F.R. § 4.85, Table VII. Although the October 2017 VA examination report was conducted in accordance with 38 C.F.R. § 3.350 and established bilateral deafness equal to or greater than the minimum bilateral hearing loss required for a maximum disability rating, there is no evidence of bilateral deafness per VA's definition prior to this date. While October 2010 and October 2012 VA audiological examinations noted high frequency sensorineural hearing loss in the right ear, the Veteran was still able to recognize speech using his right ear under the Maryland CNC requirements at 96 and 94 percent, respectively. In both instances these scores, when combined with the right ear pure tone threshold results, resulted in a Roman numeral designation of I for the ear, the lowest level of impairment. These designations indicate that the Veteran suffered relatively minor hearing loss in his right ear, and as such did not manifest deafness in both ears as required for SMC under 38 C.F.R. § 3.350. Just as the Board cannot factually ascertain an earlier onset date of deafness in the Veteran's right ear in awarding an earlier effective date for a 100 percent rating for bilateral hearing loss, it lacks the evidence necessary to grant entitlement to an earlier effective date for the award of SMC based on deafness in both ears. As such, there is on reasonable doubt to resolve in the Veteran's favor, and the claim must be denied. 38 U.S.C. § 5107(b), Gilbert, 1 Vet. App. at 54-56. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.