Citation Nr: 21031798 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 20-03 226 DATE: May 24, 2021 ORDER An effective date of July 20, 2018, but no earlier, for the assignment of a 20 percent rating for bilateral hearing loss is granted, subject to the criteria governing the payment of monetary benefits. FINDING OF FACT A claim for service connection for tinnitus was received by VA on July 20, 2018; the RO treated this as a claim for an increased rating for hearing loss. An increase in hearing loss was not shown one year prior to July 20, 2018. CONCLUSION OF LAW The criteria for an effective date of July 20, 2018, but no earlier, for the assignment of a 20 percent rating for bilateral hearing loss have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to May 1992. In June 2020, the Board denied the appeal. The Veteran appealed to the Veterans Claims Court. In January 2021, the Court Clerk granted a Joint Motion for Remand (JMR), which vacated the June 2018 Board decision and remanded the matter back to the Board for action consistent with the JMR. Turning to the relevant laws and regulations, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefrom. 38 U.S.C. § 5110(a). Specifically, as to claims for increase, the statute 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 application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, it will be the date of receipt of the claim. 38 C.F.R. § 3.400(o). The Court and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to 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 the claim, the award is effective the date of claim. If the increase occurred after the date of 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 Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed after that date, the amendments are applicable in this instance. Disability evaluations are determined by evaluating the extent to which a veteran'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). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends he is entitled to an effective date prior to August 7, 2018, for the 20 percent evaluation for his service-connected bilateral hearing loss. The evidence of record reflects that the Veteran submitted his initial claim of service connection for hearing loss in June 1992. There were no prior formal or informal claims of record. Service connection for left ear hearing loss was granted by the RO in a rating decision dated December 1992 and a noncompensable evaluation was assigned, effective June 1, 1992. The Veteran did not submit a notice of disagreement (NOD) or otherwise express disagreement with that determination within one year and, as such, the decision is final. The Veteran subsequently filed an informal claim for an increased rating for his hearing loss in October 2003. In a March 2004 rating decision, the RO confirmed and continued the noncompensable evaluation for left ear hearing loss. The Veteran did not submit an NOD or otherwise express disagreement with that determination within one year and, as such, the decision is final. Thereafter, the record reflects that the Veteran submitted a VA Form 9 in September 2006, which was interpreted by the RO as an increased rating claim for hearing loss. It was untimely as an appeal to any decision. The RO confirmed and continued the noncompensable evaluation for left ear hearing loss in a September 2007 rating decision. The Veteran did not submit an NOD or otherwise express disagreement with that determination within one year and, as such, the decision is final. There is no allegation or showing of clear and unmistakable error in the prior final denials in December 1992, March 2004, or September 2007. The Veteran filed a Fully Developed Claim (VA Form 21-526EZ) for service connection for tinnitus, which was received by the RO on July 20, 2018. At the time he submitted the VA Form 21-526EZ, he submitted a May 2018 private treatment record noting mild to severe hearing loss in the left ear and mild to moderately severe hearing loss in the right ear. Pursuant to the July 2018 claim, the Veteran was afforded a VA audiological examination on August 7, 2018. The examination included audiometric testing and a diagnosis of bilateral sensorineural hearing loss. In an August 2018 rating decision, the RO treated the July 20, 2018 claim as a claim for an increased rating for bilateral hearing loss and granted an increased rating of 20 percent for bilateral hearing loss, effective August 7, 2018, the date of the VA examination showing an increased rating was warranted. In his November 2020 NOD, the Veteran asserted that an effective date earlier than August 7, 2018 was warranted for the award of the increased 20 percent rating. The Veteran has not indicated what effective date he feels is appropriate for the award of the increased 20 percent rating for bilateral hearing loss. To the extent it may be argued that July 20, 2018 is the appropriate effective date for the increased evaluation for bilateral hearing loss, the Court has unambiguously stated that "tinnitus and hearing loss are recognized by the Secretary as separate and distinct disabilities." Monzingo v. Shinseki, 26 Vet. App. 97, 104-05 (2012). Moreover, as noted above, VA requires specificity and a specific form in filing a formal claim. Informal claims, to include treatment records, are no longer recognized as claims, and importantly, such applied only to VA treatment and examination, not private records. See 38 C.F.R. § 3.1(p); See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. However, as the RO treated the July 20, 2018 claim for service connection for tinnitus as a claim for an increased rating for hearing loss, and because the Veteran submitted a May 2018 private treatment record noting treatment for bilateral hearing loss, the Board accepts July 20, 2018 as the date of the claim for increase. As such, the Board must address whether it is factually ascertainable that an increase in disability occurred within the year prior to the July 20, 2018 claim. In May 2018, the Veteran underwent a private audiogram; however, there is no indication that this audiometry test included the appropriate speech discrimination test (Maryland CNC), and consequently, it is inadequate for rating purposes. 38 C.F.R. § 4.85. In addition, as noted above, the May 2018 private treatment record also noted that the Veteran had mild to severe hearing loss in the left ear and mild to moderately severe hearing loss in the right ear. However, importantly, an October 2016 VA treatment record specifically indicated that the Veteran's hearing had worsened in each ear. Considering the May 2018 private treatment record noting mild to severe hearing loss in the left ear and mild to moderately severe hearing loss in the right ear, as well as the October 2016 VA treatment record indicating a worsening of the bilateral hearing loss, the Board finds that it is factually ascertainable that an increase in the Veteran's service-connected hearing loss occurred in October 2016 or before, which is more than one year prior to the July 2018 claim. Under these circumstances, the appropriate effective date is the date of the claim. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2). Therefore, in construing the July 2018 claim as an implicit claim for an increased rating for hearing loss, and in considering the evidence in the one year prior to the date of receipt of the claim, the Board has determined that the evidence supports a finding that the Veteran's disability increased in severity more than one year prior to the July 2018. Consequently, the appropriate date for the increased rating of 20 percent for bilateral hearing loss is July 20, 2018, the date of the claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The appeal is granted to this extent. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.