Citation Nr: A21019602 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 211111-197088 DATE: December 8, 2021 ORDER Entitlement to an effective date prior to April 19, 2021 for the assigment of a 20 percent disability evaluation for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran submitted an intent to file a claim on April 19, 2021. 2. The Veteran filed a claim for increased evaluation for bilateral hearing loss disability on April 30, 2021. 3. In a May 2021 rating decision, the RO granted an award of increased evaluation for bilateral hearing loss disability at 20 percent with an effective date of April 19, 2021. 4. The Veteran submitted a notice of disagreement VA Form 10182 on November 11, 2021. CONCLUSION OF LAW The criteria for an earlier effective date prior to April 19, 2021 for the award of increased disability evaluation for bilateral hearing loss disability at 20 percent have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1970 to September 1970 and from August 3, 1974 to August 17, 1974. 1. Entitlement to an effective date prior to April 19, 2021 for the award of increased evaluation of bilateral hearing loss disability to 20 percent The Veteran contends that due to having hearing aids and hearing issues since 2013, that the effective date of the award for increased hearing loss at 20 percent effective April 19, 2021 should be dated back to 2013. After a thorough review of the evidence, the Board finds that entitlement to an effective date prior to April 19, 2021 for the award of increased rating to 20 percent for bilateral hearing loss disability is not warranted. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), creates a new framework of review for veterans who disagree with VA's decision on their claim. In a January 2021 rating decision, the RO granted entitlement to service connection for bilateral hearing loss with an effective date of March 14, 2012 at a noncompensable level. The record does not show that the Veteran has filed a notice of disagreement with the January 2021 rating decision. See. 38 C.F.R. § 20.201 (a) (requiring that notices of disagreement be submitted on forms prescribed by VA when VA sends the form to a claimant); see Veterans Justice Group, LLC v. Secretary of Veterans Affairs, 818 F.3d 1336 (Fed. Cir. 2016) (upholding the validity of 38 C.F.R. § 20.201 (a)). On April 19, 2021, the Veteran submitted an intent to file a claim. On April 30, 2021, the Veteran submitted a VA Form 21-526EZ claiming an increased rating evaluation for bilateral hearing loss disability. In a May 2021 rating decision, the RO granted an increased evaluation for bilateral hearing loss disability to 20 percent with an effective date of April 19, 2021. On November 11, 2021, the Veteran submitted a VA Form 10182 notice of disagreement choosing the direct review lane. Direct review is the appeal option to the Board in which a Board decision is issued based on evidence of record at the time of the prior decision. The Board cannot hold a hearing or accept into the record additional evidence in its direct review. On the form, the Veteran wrote, "the VA has provided me with hearing aids and other devices to allow me to more clearly hear since at least 2013 due to my hearing injury. Therefore, I feel compensation should be retroactive to at least that date." The Board finds that this disagreement is an appeal for an earlier assigned effective date prior to April 19, 2021 for the award of increased disability rating to 20 percent for bilateral hearing loss. The Board notes that VA sent the Veteran a letter dated November 16, 2021 informing him that the VA Form 10182 submitted on November 11, 2021 indicated a choice of both Higher-Level Review and submission of the 10182; and that the 10182 was incomplete. The Board does not find evidence in the Veteran's claims file that he requested review for this issue in another manner apart from the VA Form 10182 submitted on November 11, 2021 in the direct review lane, which was signed and dated by the Veteran, and therefore complete, and will proceed to adjudicate based on that submission. 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 effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). Disability evaluations are determined by evaluating the extent to which the claimant's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The method for rating a hearing loss disability depends in part on the results of the Maryland CNC speech recognition test, and in part on the results of the pure tone audiometric test at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 describes the sequence of steps that a VA adjudicator must use to apply the rating criteria for hearing loss disability. For the pure tone audiometric test, an average pure tone threshold is obtained by dividing the sum of these thresholds by four. After the average pure tone threshold is determined, Table VI of 38 C.F.R. § 4.85 is normally used to assign a Roman numeral hearing impairment designation based on a combination of the percent of speech discrimination and pure tone threshold average. After a Roman numeral hearing impairment designation has been assigned to each ear, Table VII of § 4.85 is used to assign the disability rating for bilateral hearing loss by combining the Roman numeral hearing impairment designations for both ears. Id. A claimant may indicate a desire to file a claim for benefits by filing an intent to file a claim to VA. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by VA. If VA receives a complete application form within one year of the receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). Based on the facts outlined above, the relevant date of entitlement and claim is April 19, 2021, the date of receipt of the intent to file a claim. Therefore, the evidence must show that the Veteran's bilateral hearing loss disability factually worsened during the one year prior to April 19, 2021. The Veteran underwent a VA audiology examination in November 2020 wherein pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 60 85 80 LEFT 25 40 40 55 55 The average rating for the left ear of results for 1000 Hertz to 4000 Hertz was 48 and for the right ear was 68. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 percent in the left ear. Using Table VI, these findings indicate hearing acuity of Level I in the left ear and Level II for the right ear. According to Table VII, these designations indicate that a zero percent disability rating is appropriate. There is not an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86. The Board acknowledges the Veteran's contention that his bilateral hearing loss disability was worse than the 20 percent assigned at a time prior to April 19, 2021. However, the Veteran, as a layperson, is not competent to determine if his hearing loss disability met the criteria under VA regulations for a specific evaluation level without medical examination and interpretation. The Veteran is competent to report his hearing loss as he experiences it. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). Because the assigned effective date for the increased evaluation for bilateral hearing loss disability to 20 percent is April 19, 2021, which is the date that the Veteran submitted the intent to file a claim, and it is not factually ascertainable that the Veteran's bilateral hearing loss disability worsened in the year prior to April 19, 2021, or that there was otherwise a claim for increased disability rating pending prior to that date, he is not entitled to an effective date prior to April 19, 2021 for the grant of an increased rating to 20 percent for bilateral hearing loss disability, and the appeal must be denied. While finding that the April 19, 2021, notice of an intent to file a claim is controlling in the current appeal, the Veteran is reminded that should he disagree with the initial rating decision assigned for his hearing loss disability in the January 2021 rating decision granting service connection, he has one year from the date he was notified of the decision (January 25, 2021) to submit a notice of disagreement on the proper form prescribed by the Secretary. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.