Citation Nr: 21041495 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-34 927 DATE: July 9, 2021 ORDER Entitlement to a rating in excess of 90 percent for bilateral hearing loss is denied. Entitlement to an effective date earlier than January 9, 2018 for the award of a 90 percent rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran has had no worse than Level X hearing loss in the right ear and Level XI hearing loss in the left ear. 2. It is not factually ascertainable that bilateral hearing loss underwent an increase in disability within one year of receipt of the January 2018 claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 90 percent for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an effective date earlier than January 9, 2018 for the award of a 90 percent rating for bilateral hearing loss are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from February 1969 to January 1971. The appeal originates from a February 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 90 percent for bilateral hearing loss. The Veteran seeks a 100 percent evaluation for his bilateral hearing loss disability. He asserts that he cannot get promoted because he cannot hear in meetings, he doesn't understand people, and it affects family, work, life, and his relationship with his children and wife. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, 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. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86. An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). On examination in January 2018, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 100, 110+, 110+, and 110+, for an average of 103.75; and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 105, 110+, 110+, and 110+, for an average of 105. Where the Veteran had failures of response in the puretone threshold values, the maximum allowable limit of 105 dB was used to evaluate his disability. The speech recognition score, using the Maryland CNC Test, was 62 percent in the right ear and 58 percent in the left ear. Evaluating the audiological test results cited above, the numeric designations of hearing impairment were Level VIII for the right ear and Level IX for the left ear under Table VI and Level X for the right ear and Level XI for the left ear under Table VIa for exceptional hearing loss. When the more favorable numeric designations for the right and left ears under Table VIa are applied to Table VII, the percentage of disability for hearing impairment is 90 percent. A rating in excess of 90 percent for bilateral hearing loss is therefore not warranted. The Board notes the Veteran's argument that he is entitled to an increased rating based on Meniere's disease, vertigo, and tinnitus, as well as special monthly compensation (SMC) for deafness. See June 2018 Form 9. However, he is not service connected for Meniere's disease, tinnitus is a separately rated disability, the January 2018 examination did not identify vertigo as a symptom of bilateral hearing loss (nor does the Veteran specify medical evidence during the appeal period that does so), and his bilateral hearing loss has not been equal to or greater than that required for a maximum schedular rating to qualify for SMC. See 38 U.S.C. § 3.350. Consideration is given to the functional effects of the Veteran's bilateral hearing loss. He describes difficulty hearing and understanding speech as well as having occupational impairment (including being unable to obtain a promotion or hear in meetings), suffering in various aspects of his life such as family and children, and having conflict with his spouse. See January 2018 VA Examination. The Veteran's statements are competent and credible. However, in light of the Court of Appeals for Veterans Claims' (Court) holdings in Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007) and Doucette v. Shulkin, 28 Vet. App. 366 (2017), his inability to hear or understand speech or to hear other sounds in various contexts have been sufficiently measured during the examination and such functional effects are contemplated by the schedular rating criteria. The occupational impairment caused by bilateral hearing loss is compensated by his disability rating, which is based on average impairment in earning capacity. He reported "effects" of his disability on aspects of his life but failed to offer specifics for consideration. Similarly, he attributed conflict with his spouse to the disability without more. The examination report represents the best evidence for deciding the claim and contains comprehensive audiometric testing sufficient for rating the disability. An increased rating for bilateral hearing loss is simply not warranted. 2. Entitlement to an effective date earlier than January 9, 2018 for the award of a 90 percent rating for bilateral hearing loss. The effective date for a claim seeking an increased rating for an already service-connected disability that is based on an original claim or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is "factually ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). The Veteran contends that he is entitled to an earlier effective date for an increased rating. See June 2018 Form 9. In support of his claim, he submitted a motion in January 2018 seeking to revise the March 2004 rating decision and "decisions thereafter" on the basis of clear and unmistakable error (CUE). The March 2004 rating decision established the initial evaluation for hearing loss, and a November 2006 rating decision increased the evaluation for hearing loss to 40 percent effective October 13, 2006. The Veteran appealed the March 2004 rating decision. The Board denied the initial and increased rating for bilateral hearing loss in May 2011, which was affirmed by the Court in August 2013. The Board later denied referral for an initial increased rating on an extraschedular basis in January 2014, which the Court also affirmed in a March 2018 memorandum decision. The Veteran did not appeal the Court decisions. RO decisions that are appealed to the Board become subsumed by the Board decision issued in that case. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). 38 C.F.R. § 20.1104. RO decisions that are not directly appealed to the Board may be subsumed by a later Board decision that addresses the same issue and the same factual basis (delayed subsuming). Manning v. Principi, 16 Vet. App. 534, 541 (2002). In this case, the Board finds that the CUE motion challenging the 30 percent and 40 percent evaluations in the March 2004 and November 2006 rating decisions is ineffective. The May 2011 Board decision arose from an appeal of the March 2004 rating decision. It, therefore, subsumed the March 2004 rating decision. Consequently, the March 2004 rating decision may not be collaterally attacked through a CUE motion. Next, the Board addresses the effective date on the basis of the effective date regulations. 38 C.F.R. § 3.400. The record does not reflect that any claim, formal or informal, was received following the May 2011 Board decision until receipt of the present claim on January 9, 2018. As such, the period for consideration is one year prior to the claim received on January 9, 2018. Based on the evidence, it is not factually ascertainable that an increase in disability occurred within the one-year period prior to the claim. Though the Veteran had a VA audiological evaluation in May 2017, it does not appear that word recognition was tested using the Maryland CNC Test. The Veteran submitted a private audiological evaluation from November 2017, but controlled speech discrimination testing was not performed. The January 2018 examination does not provide a basis to ascertain when its findings arose. Even considered in conjunction with the Veteran's lay reporting of his hearing loss and its functional effects, it would be speculative to ascertain when an increase in disability arose such as to support the award of an earlier effective date. Accordingly, an effective date earlier than January 9, 2018, for the award of a 90 percent rating simply cannot be established and the claim must be denied. A. Rocktashel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.