Citation Nr: 22048784 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 18-06 134A DATE: August 26, 2022 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to April 11, 2017; an initial evaluation greater than 20 percent from April 11, 2017, to May 18, 2022; and an initial evaluation greater than 60 percent thereafter is denied. Entitlement to an effective date prior to February 22, 2011, for the award of service connection for bilateral hearing loss is denied. REMANDED Entitlement to an effective date prior to February 22, 2011, for the award of service connection for tinnitus is remanded. FINDINGS OF FACT 1. On April 21, 2011, the Veteran's bilateral hearing loss manifested as no more than Level I in both the right and left ear utilizing Table VI under 38 C.F.R. § 4.85. 2. On April 11, 2017, the Veteran's left ear reflected an exceptional pattern of hearing loss. 3. On April 11, 2017, the Veteran's bilateral hearing loss manifested as no more than Level IV in the right ear and Level V in the left ear utilizing Table VI under 38 C.F.R. § 4.85. And, hearing loss in the left ear manifested as no more than Level VII utilizing Table VIa. 4. On May 18, 2022, the Veteran's bilateral hearing loss manifested as no more than Level XI in the right ear and Level VII in the left ear utilizing Table VI under 38 C.F.R. § 4.85. 5. The Veteran's first recorded claim, formal or informal, for entitlement to service connection for bilateral hearing loss was received on February 22, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss prior to April 11, 2017; an initial evaluation greater than 20 percent from April 11, 2017, to May 18, 2022; and an initial evaluation greater than 60 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 2. The criteria for an effective date prior to February 22, 2011, for the award of service connection for bilateral hearing loss are not met. 38 U.S.C.§§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Appeals Management Center (AMC), which is the agency of original jurisdiction (AOJ). In that decision, the AMC granted service connection for bilateral hearing loss and assigned a noncompensable rating effective from February 22, 2011. The matter was previously before the Board in July 2020, April 2021, and April 2022. Each time, it was remanded for further development. During the pendency of the appeal, the AOJ granted a 20 percent rating, effective April 11, 2017, in a November 2017 rating decision; and a 60 percent rating, effective May 18, 2022, in a June 2022 rating decision. 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to April 11, 2017; an initial rating greater than 20 percent from April 11, 2017, to May 18, 2022; and an initial rating greater than 60 percent thereafter Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts founda practice known as "staged rating". Fenderson v. West, 12 Vet. App. 119, 126 (1999). Hearing Loss 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 speech discrimination test (Maryland CNC), together with the average hearing threshold level measured by a puretone audiometric test in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, VIA, and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. 38 C.F.R. § 4.85; See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing tests are conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Id. Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Level. Id. Prior to April 11, 2017 In the instant case, during the period prior to April 11, 2017, the Veteran was afforded two VA audiometric examinations. The April 2011 VA examination revealed purtone thresholds of 15, 45, 60, and 50 in the right ear at the relevant frequencies and 20, 45, 55, and 50 in the left ear at the relevant frequencies. Average decibel loss was 94% in both ears. Applying those results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I in the poorer ear and Level I in the better ear, therefore a noncompensable rating is assigned under Table VII. The October 2013 VA examination revealed purtone thresholds of 20, 50, 65, and 70 in the right ear at the relevant frequencies and 25, 45, blank, and 55 in the left ear at the relevant frequencies. Unfortunately, in addition to failing to record threshold measurements at all of the relevant frequencies, the examiner did not utilize the Maryland CNC for speech discrimination as is required by regulation. The Board previously remanded this appeal, in part, to ask an examiner whether they could convert the speech discrimination results to their approximate value under the Maryland CNC word list; however, a May 2022 VA examiner stated that there was no established method to do so. Accordingly, the October 2013 VA examination is inadequate for rating purposes. 38 C.F.R. § 4.85. Based on the forgoing, entitlement to a compensable rating for the period prior to April 11, 2017, is not warranted. April 11, 2017, to May 18, 2022 During the period from April 11, 2017, to May 18, 2022, the Veteran was afforded two VA audiometric examinations. An April 2017 VA examination revealed purtone thresholds of 45, 70, 80, and 85 in the right ear at the relevant frequencies and 75, 75, 75, and 85 in the left ear at the relevant frequencies. Average decibel loss was 76% in the right ear and 78% in the left ear. Applying those results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level V in the poorer ear and Level IV in the better ear. Under those circumstances a 10 percent rating would typically be assigned under Table VII. However, the puretone results reflected an exceptional pattern of hearing loss in the left ear as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) in the left ear was 55 decibels or more. Applying those results to Table VIa yielded a finding of Level VII in the left ear. When a hearing loss is at Level VII in the poorer ear and Level IV in the better ear, a rating of 20 percent is assigned under Table VII. The March 2019 VA examination revealed purtone thresholds of 40, 70, 85, and 85 in the right ear at the relevant frequencies and 45, 70, 65, and 65 in the left ear at the relevant frequencies. Similar to the examiner in the October 2013 VA examination, the March 2019 examiner did not utilize the Maryland CNC for speech discrimination. Thus, results under 38 C.F.R. § 4.85 Table VI are inadequate for rating purposes. See also March 2022 VA examination (examiner stating that conversion from one word list to another is not possible). Entitlement to a rating greater than 20 percent for the period from April 11, 2017, to May 18, 2022, is not warranted. May 18, 2022, to the present One VA Audiometric examination was conducted this year on May 18, 2022. That examination revealed purtone thresholds of 40, 75, 84, and 95 in the right ear at the relevant frequencies and 45, 70, 65, and 70 in the left ear at the relevant frequencies. Average decibel loss was 6% in the right ear and 52% in the left ear. Applying those results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level XI in the poorer ear and Level VII in the better ear. Under those circumstances a 60 percent rating, but no more, is warranted under Table VII. Other Considerations Based on the audiological evaluations of record, the Veteran's hearing loss did not more nearly approximate the criteria corresponding to ratings in excess of what was noted above. The Board does not discount that the Veteran's hearing acuity has worsened over time; however, schedular disability ratings for hearing loss are based on the results of the audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) ("Assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered."). Moreover, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 377 (2017). The Veteran's hearing loss did not produce any other functional effects not contemplated by the rating schedule. Id. Accordingly, higher ratings than that described above are not warranted. 2. Entitlement to an earlier effective date prior to February 22, 2011, for bilateral hearing loss The Board finds that an effective date prior to February 22, 2011, for bilateral hearing loss is not warranted. Unless specifically provided otherwise, the effective date of an evaluation and award of compensation is fixed as of the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a)(1); 38 C.F.R. § 3.400. Generally, the effective date of an award of compensation may also be fixed as of the filing of an intent to file a claim as long as VA receives a fully developed claim within one year of the intent to file. 38 C.F.R. § 3.155(b). On March 24, 2015, VA amended its regulations to require that all claims be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arose. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014) (amending § 3.155). However, prior to March 24, 2015, VA accepted both formal and informal claims for benefits. See id.; Norris v. West, 12 Vet. App. 413, 416 (1999); 38 C.F.R. § 3.155 (2014). Previously, a document had to evince (1) an intent to apply for benefits and (2) identify the benefits sought to qualify as an informal claim. Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Nevertheless, the March 2015 amendments are only effective for claims and appeals filed on or after March 24, 2015. As the issue in this case was filed prior to that date, the amendments are not applicable in this instance, and the regulations in effect prior to March 24, 2015, are applicable. Turning to the evidence of record, the Board finds that VA did not receive a statement, either orally or via written communication, that indicated an intent to file a claim for bilateral hearing loss prior to February 22, 2011. The Board acknowledges the Veteran's contention contained in the February 2011 VA Form 21-526 that he "applied for VA [benefits] 10 years ago" and that, due to his level of income, he was "declared ineligible." While the Veteran is competent to report his first-person experiences, there is nothing in the record indicating that either he applied for compensation benefits or that he was declared ineligible or otherwise denied some sort of VA benefit. Such records would be expected to be associated with the file if he had applied; or similar records that could be expected in the development or adjudication of the claim, which are also absent. Moreover, "there is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). Here, there is no irregularity plainly appearing in the record and there is not clear and convincing evidence to the contrary. The Veteran's statements do not constitute clear and convincing evidence to the contrary sufficient to rebut the presumption. Accordingly, the Board concludes that VA did not receive a claim, formal or informal, for bilateral hearing loss prior to February 22, 2011. The Board also recognizes that the Veteran has stated that he did not attempt to obtain VA benefits when he returned from service because he was unaware of the system, see February 2022 Correspondence; however, the record reflects that he applied for benefits (for different disabilities, a skin rash) the year of his separation but did not report for examination, see July 28, 1969 VA 21-526 Veterans Application for Compensation or Pension; November 4, 1969 VA 21-8947 Compensation and Pension Award. Service connection for hearing loss was not within the scope of that claim, either by the four corners of the document or based on consideration of the evidence developed in the adjudication of that claim. See Shea v. Wilkie, 926 F.3d. 1362, 1367-68 (summarizing cases that require VA to liberally construe the record to determine whether documents satisfy § 3.155). Furthermore, while the Veteran asserted generally that he applied for VA benefits in or around 1998, he never mentioned what type of benefits or whether those benefits were related to his hearing loss. See, e.g., March 2012 Correspondence (accepted as Notice of Disagreement); May 2021 Correspondence; February 18, 2022 Correspondence. Thus, the Board finds that no informal or formal claim was filed prior to February 22, 2011. The Board acknowledges and is sympathetic to the Veteran's frustration around being granted service connection for bilateral hearing loss effective some 30 years after separation. However, the Board is bound by statue and regulation that outlines the parameters of effective dates. All things considered, entitlement to an effective date prior to February 22, 2011, is denied. REASONS FOR REMAND 1. Entitlement to an earlier effective date for the award of service connection for tinnitus. Service connection for hearing loss and tinnitus was granted in a June 2015 rating decision. In the July 2015 notice of disagreement that initiated this appeal, he clearly disagreed with the initial evaluations assigned for both disabilities, but he also attached a narrative further explaining his points of disagreement. In a prior remand, the Board reviewed that narrative and interpreted it as also appealing the effective date of service connection for hearing loss. Thus, the issue was remanded for a statement of the case, perfected to the Board, and addressed herein. Now, the Board looks at that narrative one more time and finds that the same logic underpinning the determination that the effective date for hearing loss was appealed should equally apply to the effective date for tinnitus. This determination is also consistent with the Veteran's representative's contentions in the August 2022 appellate brief. The AOJ has not issued a statement of the case adjudicating the issue of entitlement to an earlier effective date for the award of service connection for tinnitus. Accordingly, remand is required for issuance of a statement of the case. (Continued on the next page) This matter is remanded for the following action: Issue a statement of the case adjudicating the issue of entitlement to an earlier effective date for the award of service connection for tinnitus. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.