Citation Nr: 22068356 Decision Date: 12/13/22 Archive Date: 12/13/22 DOCKET NO. 18-35 445 DATE: December 13, 2022 ORDER Entitlement to an earlier effective date prior to April 26, 2017, for the increased evaluation of 10 percent for service-connected bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a July 2017 rating decision, the RO granted an increased evaluation of 10 percent for the Veteran's bilateral hearing loss, effective April 26, 2017, the date the Veteran filed his claim for an increased rating. 2. For the one year prior to April 26, 2017, the medical evidence does not show a date when it is factually ascertainable that the Veteran's bilateral hearing loss increased in severity to warrant an increased evaluation of 10 percent. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date prior to April 26, 2017, for the increased evaluation of 10 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Marine Corps from September 1962 to June 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. In March 2021, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing. A transcript of the hearing is of record. In September 2021 and February 2022, the Board remanded these issues for additional development. The Board notes that there was not substantial compliance with its February 2022 remand directives as it pertains to the increased rating claim for bilateral hearing loss. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to an earlier effective date prior to April 26, 2017, for the increased evaluation of 10 percent for service-connected bilateral hearing loss. The Veteran contends that he is entitled to an earlier effective date prior to April 26, 2017, for his increased rating of 10 percent assigned for his bilateral hearing loss. 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(b)(1); 38 C.F.R. § 3.400(b)(2). Regarding the award of an increased rating for compensation, the effective date shall be the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The increase in disability must have occurred during the one-year period prior to the date of the Veteran's claim in order to receive the benefit of an earlier effective date. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The Veteran filed an original claim for his bilateral hearing loss in March 2008. The claim was denied by the RO in an October 2008 rating decision. The Veteran timely filed a Notice of Disagreement in October 2009 and submitted additional medical evidence for review. In April 2010, the RO granted the Veteran's claim for service connection and assigned a noncompensable evaluation, effective March 20, 2008 (date of original claim). The Veteran did not appeal this decision, and thus, this decision became final. See 38 C.F.R. § 20.302(a), 20.1103. Thereafter, on April 26, 2017, the Veteran filed a claim for an increased evaluation of his bilateral hearing loss, which was granted in an April 2017 rating decision, assigning a 10 percent evaluation effective April 26, 2017 (date of claim for increase). As an initial matter, the Board notes that based on the legal criteria for earlier effective dates for increased ratings, the Veteran is not able to receive an effective date earlier than April 26, 2017, as the rating decision subsequent thereto is final and the Veteran did not submit his claim for an increased rating until April 2017 following the most recent April 2010 rating decision. Therefore, the question before the Board becomes, whether there was an increase in disability for the Veteran's bilateral hearing loss during the one year prior to April 26, 2017; thus, the earliest possible date the Veteran could receive in this claim, by law, is April 26, 2016. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). However, after review of the record, the evidence does not reveal that an earlier effective date prior to April 26, 2017, is warranted. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Within the year of the Veteran's claim for an increased rating, the Veteran received treatment for his bilateral hearing loss, and wore hearing aids. However, the pertinent competent clinical evidence of record includes the objective clinical auditory evidence found in the VA audiogram, dated March 20, 2017. On the March 2017 VA audiogram, the Veteran's relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Right 15 50 65 75 Left 10 55 70 75 Based on the numbers shown above, the Veteran's pure tone threshold average for the right ear were recorded as 51.25 decibels and left ear were recorded as 52.5 decibels. His speech recognition ability was 92 percent for the right ear and 84 percent for the left ear. Utilizing Table VI for the right and left ears, the results revealed Level I and Level II, respectively, which warrants a 0 percent rating according to Table VII. See VA treatment record, March 2017. Based on the above, the Board finds that the competent and credible evidence of record does not reveal a factually ascertainable increase in the Veteran's bilateral hearing loss to a level of 10 percent or higher prior to April 26, 2017. Therefore, the Board finds that an earlier effective date prior to April 26, 2017, for the increased evaluation of 10 percent for the Veteran's service-connected bilateral hearing loss is not warranted. As such, the Board concludes that the persuasive evidence of record is against service connection, is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Therefore, the appeal is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss is remanded. As noted above, the Board remanded the Veteran's claim for additional development, specifically to obtain the June 2017 VA audiogram results for review. A review of the record reflects that, in June 2022, part of the June 2017 VA audiogram was uploaded to the claims file, however, it still fails to show actual audiogram results, as the Board notes the portion uploaded is that of a mere chart that does not clearly reflect decibel results and specifically decipher which decibel levels are for each ear. In addition, subsequent VA medical treatment records were uploaded to the claims file that revealed the Veteran underwent an audiogram examination in March 2022 at the Saginaw VA clinic, however, the actual audiogram results have not been included in the claims file. As the results from the June 2017 and March 2022 audiograms are pertinent to the Veteran's claim for an increased evaluation for his bilateral hearing loss during the appeal period, the Board finds that a remand is necessary to obtain such audiogram results for review, in compliance with Stegall and prior to readjudication of the claim. The matters are REMANDED for the following action: Obtain and associate with the Veteran's claims file any pertinent medical records (VA and private) regarding the Veteran's bilateral hearing loss, to include the audiological results conducted in June 2017 at the Cadillac VA clinic and in March 2022 at the Saginaw VA clinic. If no such audiological results exist, please prepare proper documentation (formal finding of lack of unavailability), and associate with the claims file. Please note: the audiological results must include numerical decibel results and specifically identify the results for each ear. Signature on the next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.