Citation Nr: A21020636 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210803-176414 DATE: December 29, 2021 ORDER An effective date of April 26, 2019 for the award of a 20 percent evaluation for bilateral hearing loss is granted. Entitlement to an effective date prior to February 29, 2020 for service connection for peripheral vestibular disorder is denied. Entitlement to a disability evaluation in excess of 20 percent for bilateral hearing loss is denied. A disability evaluation of 30 percent for peripheral vestibular disorder is granted for the entire period on appeal. FINDINGS OF FACT 1. The Veteran submitted a supplemental claim for increased evaluation of bilateral hearing loss on April 26, 2019 and it is not factually ascertainable that the Veteran's increase in disability of his bilateral hearing loss manifested within one year prior to receipt of that claim. 2. The earliest and only document in the record that may be accepted as a claim for service connection for peripheral vestibular disorder is an Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ received on February 29, 2020. 3. The weight of the competent and probative evidence is against finding the Veteran's bilateral hearing loss manifests at more than a Roman numeral V right hearing impairment and a Roman numeral VI left hearing impairment. 4. The competent and probative evidence is evenly balanced as to whether the Veteran's peripheral vestibular disorder has been manifested by dizziness and occasional staggering throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 26, 2019, for the award of a 20 percent evaluation for bilateral hearing loss are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.160, 3.400. 2. The criteria for an effective date prior to February 29, 2020, for service connection for peripheral vestibular disorder are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.160, 3.400. 3. The criteria for a disability evaluation in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (DC) 6100. 4. The criteria for a 30 percent disability rating for peripheral vestibular disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.87, DC 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1963 to October 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from an December 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that increased the evaluation for bilateral hearing loss to 20 percent and granted service connection for peripheral vestibular disorder with effective dates of February 29, 2020. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his or her representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). Effective Dates The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall 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(b)(2)(i). The relevant law and regulations provide that the effective date of an award of increased compensation "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110(a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2). The United States Court of Appeals for Veterans Claims (Court) has indicated that in order for entitlement to an increase in disability compensation to arise, the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. 1. Entitlement to an effective date prior to February 29, 2020, for the grant of a 20 percent evaluation for bilateral hearing loss The Veteran contends that he is entitled to an effective date of April 26, 2019, for the award of a 20 percent evaluation for bilateral hearing loss. The Veteran was awarded service connection for bilateral hearing loss with a noncompensable evaluation in a March 1990 rating decision. The Veteran filed a claim for increased evaluation in March 2017. In a May 2017 rating decision, a noncompensable evaluation was continued. The Veteran did not appeal that decision and the decision became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. On April 26, 2019, the Veteran submitted an increased rating claim for bilateral hearing loss on a VA Form 20-0995, Decision Review Request: Supplemental Claim, identifying the May 2017 rating decision. The AOJ informed the Veteran that his VA Form 20-0995, Decision Review Request: Supplemental Claim was incomplete and advised that the Veteran put all increases on VA Form 21-526EZ. June 18, 2019, Correspondence. The AOJ further informed the Veteran that he had 60 days to submit a completed application to preserve the claim date of April 26, 2019. See Id. Documentation in the claims file indicates that the Veteran spoke with the AOJ in September 2019. The AOJ noted in the file that a claim was not established when the Veteran filed his VA Form 20-0995, and the Veteran was told incorrectly that he needed to file a VA Form 21-526EZ for the issue. See September 30, 2019, IRIS Inquiry. The Veteran submitted a VA Form 21-526EZ in February 2020 for, among other things, an increased evaluation for bilateral hearing loss. The Board finds that an effective date of April 26, 2019, and no earlier, is warranted for the award of a 20 percent evaluation for bilateral hearing loss. After the April 26, 2019, VA Form 20-0995 Supplemental Claim was deemed an incomplete application by the AOJ, the Veteran had 1 year to submit a complete claim. A completed claim submitted within 1 year is considered filed as of the date of the incomplete application. 38 C.F.R. § 3.155(c). As noted above, the Veteran submitted a complete application in February 2020, within 1 year of the incomplete application, and is considered filed as of April 26, 2019. The record fails to demonstrate a factually ascertainable increase in the severity of the Veteran's bilateral hearing loss within the year prior to April 26, 2019. As such, an effective date of April 26, 2019 for the award of an increased evaluation of 20 percent for bilateral hearing loss is granted. 2. Entitlement to an effective date prior to February 29, 2020 for service connection for peripheral vestibular disorder The Veteran contends he is entitled to an earlier effective date for the grant of service connection for peripheral vestibular disorder. The Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ for service connection for vertigo (evaluated as peripheral vestibular disorder) was received on February 29, 2020. Prior to February 29, 2020, the Veteran did not file an Intent to File Form or completed claim identifying service connection for vertigo or peripheral vestibular disorder. Neither vertigo nor peripheral vestibular disorder were included on the Veteran's April 26, 2019, VA Form 20-0995, Decision Review Request: Supplemental Claim. The Board finds that an effective date prior to February 29, 2020, for the grant of service connection for peripheral vestibular disorder is not warranted. The effective date of an award based on an original claim or a claim reopened after initial adjudication of compensation shall not be earlier than the date of receipt of the application. The Veteran submitted a formal claim for compensation on February 29, 2020. An earlier effective date for the grant of service connection for peripheral vestibular disorder is not warranted. The Board notes that the Veteran argues that the claim for service connection for peripheral vestibular disorder was reasonably raised in conjunction with the December 1989 claim for service connection for hearing loss and the April 1998 claim for service connection for posttraumatic stress disorder. See October 20, 2021, Third Party Correspondence. In the present matter, the Board's jurisdiction extends only to the appeal for an earlier effective date for a grant of service connection and does not extend to consideration of whether the rating decisions corresponding to the December 1989 claim for service connection for bilateral hearing loss or the April 1998 claim for service connection for posttraumatic stress disorder made an erroneous factual finding about the evidence, as the Veteran alleges. The motion seeking revision on the basis of clear and unmistakable error (CUE) is completely separate from entitlement to an earlier effective date and must be adjudicated by the RO in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (explaining that 38 U.S.C. § 5109A requires that a request for revision of a final RO decision on the basis of CUE be submitted to the RO for initial adjudication); Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that a CUE motion and a claim seeking an earlier effective date are not the same or inextricably intertwined because while the effective date element flows directly from the award of service connection, a CUE motion may be brought at any time and is premised upon an error in a prior final RO adjudication). The issue of whether the prior rating determinations contained CUE have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction to decide the issue. The Veteran may resubmit the claim to the AOJ or notify the AOJ that the issue is still pending. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). All regulations that are potentially applicable must be acknowledged and considered. Schafrath, 1 Vet. App. at 593. 3. Entitlement to a disability evaluation in excess of 20 percent for bilateral hearing loss The Veteran contends he is entitled to an evaluation in excess of 20 percent for bilateral hearing loss. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.86. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a Puretone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the Puretone 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. 38 C.F.R. § 4.86 (a). When the Puretone 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 Roman numeral. 38 C.F.R. § 4.86(b). During a September 2020 VA audiological examination, Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 70 80 80 68.75 LEFT 50 75 85 85 73.75 The Veteran's average right ear decibel loss was 69dB and left ear decibel loss was 74dB. The examiner determined the use of speech discrimination scores was not appropriate for the Veteran. Utilizing Table VIA listed in 38 C.F.R. § 4.85, the above audiological findings result in a Roman numeral V hearing impairment in the right ear and Roman numeral VI hearing impairment in the left ear. Plotting a Roman numeral V right hearing impairment and a Roman numeral VI left hearing impairment on Table VII in 38 C.F.R. § 4.85 results in a 20 percent rating. The Veteran does not have an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86 in either ear. The evidence is against an evaluation greater than 20 percent for the Veteran's bilateral hearing loss disability. In reaching this determination, the Board has considered the Veteran's lay statements. While the Veteran is competent and credible to report decreased hearing acuity, he is not competent to state that his bilateral hearing loss disability results in the specific audiometric test results required for a higher evaluation. In the absence of any additional evidence showing a more severe hearing loss disability, the Veteran's hearing loss has not satisfied the criteria an evaluation in excess of 20 percent. 4. Entitlement to a disability evaluation in excess of 10 percent for peripheral vestibular disorder The Veteran contends he is entitled to a 30 percent evaluation for peripheral vestibular disorder. The Veteran's peripheral vestibular disorder is rated under 38 C.F.R. § 4.87, DC 6204, which provides that a 10 percent rating is warranted for occasional dizziness, and the maximum schedular rating of 30 percent is warranted for dizziness and occasional staggering. A note following DC 6204 provides: "Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating can be assigned under this code." 38 C.F.R. § 4.87, DC 6204. The term "staggering" is not defined in the rating schedule but is generally defined as standing or proceeding unsteadily. See Webster's New College Dictionary, 3rd ed., at 1099. After a review of all the evidence, the Board finds that the evidence is at least in relative equipoise as to whether a higher evaluation of 30 percent for the service-connected peripheral vestibular disorder is warranted for the entire rating period on appeal. During a December 2020 VA ear conditions examination, the Veteran reported intermittent episodes of vertigo throughout the years since service. He described episodes of dizziness and lightheadedness twice per week. The examiner assessed objective findings of vertigo more than once per week, with each episode lasting less than an hour. The examiner did not attribute any signs or symptoms of staggering but noted an unsteady, moderately wide based gait upon examination. The Veteran indicates that he has had progressively worse balance issues since service. He described feeling dizzy when he walks and falling with some frequency due to balance problems. The Veteran reported the need to hang on to something when he walks and take short, slow steps. See October 20, 2021, Correspondence. The Veteran is competent to report symptoms such as dizziness, staggering, and loss of balance as they come to him through his senses. Given his credible complaints of dizziness, loss of balance, and falls, and resolving all doubt in favor of the Veteran, the Board finds that a 30 percent rating under DC 6204 is warranted for the entire rating period on appeal. (Continued on the next page) A 30 percent rating for the entire rating period on appeal represents the maximum schedular rating available under DC 6204. 38 C.F.R. § 4.87. The Board finds no other applicable diagnostic codes that would afford the Veteran a rating in excess of 30 percent. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.