Citation Nr: 18124027
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-29 073A
DATE:	August 3, 2018
ORDER
An earlier effective date of September 25, 2008, for the award of service connection for bilateral hearing loss is granted.
Entitlement to an effective date earlier than May 14, 2007, for the grant of service connection for tinnitus is denied.
Entitlement to an initial compensable disability rating for bilateral hearing loss is denied.
FINDINGS OF FACT
1. The Veteran separated from the active military service in April 1952; he did not raise a claim of entitlement to service connection for bilateral hearing loss or tinnitus within one year of discharge.
2. In October 2005, the Veteran first raised a claim of entitlement to service connection for bilateral hearing loss.  This claim was denied in February 2006 and August 2006 rating decisions.  The Veteran submitted a Notice of Disagreement (NOD) in August 2006.  A Statement of the Case (SOC) was issued in February 2007.  The Veteran did not submit a timely Substantive Appeal, and the August 2006 rating decision became final.
3. The AOJ in August 2006 considered the correct facts, as they were known at the time, and appropriately applied the law as then in effect.
4. In a VA Form 9 received by VA on September 25, 2008, the Veteran raised an informal claim to reopen his previously denied claim of entitlement to service connection for bilateral hearing loss.
5. No communication prior to September 25, 2008, may be interpreted as an informal claim to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss.
6. On May 14, 2007, the Veteran first raised a claim of entitlement to service connection for tinnitus.  
7. In an August 2011 rating decision, service connection for tinnitus was granted, effective May 14, 2007.
8. No communication prior to May 14, 2007, may be interpreted as an informal claim for entitlement to service connection for tinnitus.
9. Bilateral hearing loss is demonstrated by, at worst, Level XXXX loss on the right, and level XXX on the left.
CONCLUSIONS OF LAW
1. The criteria for an earlier effective date of September 25, 2008, for the award of service connection for bilateral hearing loss have been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018).
2. The criteria for an effective date prior to May 14, 2007, for the award of service connection for tinnitus have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018).
3.  The criteria for an initial compensable evaluation for bilateral hearing loss are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service from August 1950 to April 1952.  These issues are on appeal from an August 2011 rating decision.  In his August 2014 Form 9, the Veteran requested a Board hearing.  The Veteran was notified that his hearing had been scheduled in a May 2018 letter, but he failed to report for the hearing and has not provided good cause for his absence.  The hearing request is therefore considered withdrawn.
Effective Date
Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2).
The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2).
1. Entitlement to an effective date earlier than January 27, 2010, for the award of service connection for bilateral hearing loss.
An August 2011 rating decision granted entitlement to service connection for bilateral hearing loss, effective January 27, 2010.  The Veteran contends that he is entitled to an earlier effective date for this award of service connection.  He specifically argues for an October 2005 date, marking when he filed his first claim for service connection of this disability.
The Veteran separated from the active military service in April 1952.  It is not in dispute that he failed to submit a claim of entitlement to service connection for bilateral hearing loss within one year from his discharge.  Therefore, assignment of an effective date back to the day following discharge is not possible.
It is observed that the Veteran initially raised a claim of entitlement to service connection for bilateral hearing loss in October 2005.  That claim was denied by the AOJ in February 2006 and August 2006 rating decisions.  In response, the Veteran submitted a NOD in August 2006.  A SOC was issued in February 2007.  The Veteran did not file a timely Substantive Appeal (on VA Form 9, or in any other format) in response, and the August 2006 rating decision became final.  See 38 U.S.C. § 7105.  The effect of this finality is to preclude an award of an effective date prior to the August 2006 denial.
Following the February 2007 SOC, the Veteran did not mention his bilateral hearing loss until November 2007 and March 2008 statements submitted to the Agency of Original Jurisdiction (AOJ).  These statements were submitted during the course of his tinnitus appeal, and mention both his tinnitus and bilateral hearing loss.  However, the November 2007 and March 2008 statements do not mention or suggest an intent to file a claim to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss.  In response to the November 2007 and March 2008 statements, the AOJ sent the Veteran a letter in April 2008.  The letter informed the Veteran that he did not file a Substantive Appeal within 60 days of the mailing of the February 2007 SOC or within the remainder of the one-year period from the date of the mailing of the notice of the determination being appealed.  Thus, the AOJ informed the Veteran that no further action could be taken on his appeal because the right to appeal had expired.  The Veteran was told that to reopen his claim for bilateral hearing loss, he needed to submit new and material evidence.  
The next mention of the Veteran’s bilateral hearing loss in correspondence to the AOJ was on a VA Form 9 from the Veteran received by VA on September 25, 2008.  The VA Form 9 mentions the Veteran’s bilateral hearing loss and states that “one of their doctors suggested I make a claim.”  The Board finds that this statement by the Veteran is sufficient to infer an informal claim to reopen his previously denied claim of entitlement to service connection for bilateral hearing loss.  An effective date of September 25, 2008, is awarded for the grant of service connection for bilateral hearing loss.
Thus, September 25, 2008, serves as the date of claim.  Although the evidence of record does not reveal an exact date upon which the entitlement arose, the Board notes that such information is not required in order to conclude that the September 25, 2008, date selected is the earliest possible effective date.  The reason for this is that if the entitlement arose prior to September 25, 2008, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2).  Any evidence showing that the entitlement occurred after September 25, 2008, would not entitle the Veteran to an earlier effective date.
The Board has also considered whether any evidence of record prior to September 25, 2008, could serve as an informal claim in order to entitle the Veteran to an earlier effective date.  In this regard, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155.  After reviewing the record, the Board concludes that there are no testimonial documents submitted after the February 2007 SOC and prior to September 25, 2008, indicating an intent to reopen a claim of entitlement to service connection for bilateral hearing loss.
It is further noted that, under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits.  However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable.  Here, the Veteran’s September 25, 2008, claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that his claim, be it formal or informal, of entitlement to service connection for bilateral hearing loss was filed earlier than September 25, 2008.  38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993).
The Board appreciates the Veteran’s lay statements, in which he maintains he is entitled to an effective date earlier than September 25, 2008, for his service-connected bilateral hearing loss. The Board does not disagree with the Veteran’s contention that he originally filed a claim of service connection for bilateral hearing loss in October 2005.  The Board finds, however, that this claim of service connection was denied in August 2006, and it became final.  As such, the earliest effective date possible for the Veteran’s claim to reopen for service connection for bilateral hearing loss is September 25, 2008.
In sum, an earlier effective date of September 25, 2008, but no earlier, is assigned for the award of service connection for bilateral hearing loss.
2. Entitlement to an effective date earlier than May 14, 2007, for the grant of service connection for tinnitus.
An August 2011 rating decision granted entitlement to service connection for tinnitus, effective May 14, 2007.  The Veteran contends that he is entitled to an earlier effective date for this award of service connection.
The Veteran separated from the active military service in April 1952.  It is not in dispute that he failed to submit a claim of entitlement to service connection for tinnitus within one year from his discharge.  Therefore, assignment of an effective date back to the day following discharge is not possible.
Here, the AOJ received the Veteran’s claim of entitlement to service connection for tinnitus on May 14, 2007.  Thus, that date serves as the date of claim.  Although the evidence of record does not reveal an exact date upon which the entitlement arose, the Board notes that such information is not required in order to conclude that the May 14, 2007, date selected by the AOJ is the earliest possible effective date.  The reason for this is that if the entitlement arose prior to May 14, 2007, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2).  Any evidence showing that the entitlement occurred after May 14, 2007, would not entitle the Veteran to an earlier effective date.
The Board has considered whether any evidence of record prior to May 14, 2007, could serve as an informal claim in order to entitle the Veteran to an earlier effective date.  In this regard, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155.  After reviewing the record, the Board concludes that there are no testimonial documents submitted prior to May 14, 2007, indicating an intent to file a claim of entitlement to service connection for tinnitus.
It is further noted that, under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits.  However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable.  Here, the Veteran’s May 14, 2007, claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that his claim, be it formal or informal, of entitlement to service connection for tinnitus was filed earlier than May 14, 2007.  38 C.F.R. § 3.157; Crawford, 5 Vet. App. at 33.
The Board appreciates the Veteran’s lay statements, in which he maintains he is entitled to an effective date earlier than May 14, 2007, for his service-connected tinnitus.  Specifically, the Veteran requests an October 2005 effective date because that was when he filed his original claim of entitlement to service connection for bilateral hearing loss.  However, none of the correspondence from the Veteran dated in October 2005 or any correspondence dated prior to May 14, 2007, mentions tinnitus or its associated symptoms.  As such, the earliest effective date possible for the Veteran’s tinnitus claim is May 14, 2007.
In sum, the presently assigned effective date of May 14, 2007, is appropriate and there is no basis for an award of service connection for tinnitus prior to that date.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
3. Entitlement to an initial compensable disability rating for bilateral hearing loss
In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 
If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 
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. 
Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). As is discussed in greater detail below, the schedule takes into account the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. 
In addition, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the adjudicator 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). No exceptional patterns are shown here.
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 pure tone audiometry test. 38 C.F.R. § 4.85.
A VA examination was afforded the Veteran in July 2010, which showed:
	Hertz	CNC	
	1000	2000	3000	4000	Avg	
RIGHT	45	55	70	75	61.25	92%	 
LEFT	45	45	70	80	60	96%	 
										
Under Table VI, for both ears no worse than Level II hearing loss is shown.  This corresponds to a noncompensable rating under the matrix of Table VII.
The Board notes that the Veteran submitted a private audiometry dated in February 2012. Although the submission includes only the raw, graphed test results, the Board may interpret such.  The process of reading the raw data from the chart used to report it requires no specialized medical training or knowledge; no interpretation is needed to transcribe the numbers from one form to another.  While the Court may not do so, citing such as “fact finding,” the Board and the AOJ, as triers of fact, are entitled to do so.  Kelly v. Brown, 7 Vet. App. 471 (1995). This audiometry also provides speech recognition scores, but specifies that a test other than the Maryland CNC word list was used; the NU-6 list was employed. The private test may not be utilized for adjudication purposes. The Board does note that the 2012 results are generally consistent with the VA’s 2010 results.
The Veteran and his representative have requested scheduling of a new AV audio examination to obtain current findings, based on the age of the evidence of record. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination.  See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995).
Here, the Veteran has not alleged worsening of his hearing loss over the years, or since his last examination.  He states only that the evaluation assigned is inadequate.  In the absence of an allegation or showing of worsening of the disability, no updated examination findings are needed.  
The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In making this determination, the Board is cognizant of the holding of Martinak v. Nicholson, 21 Vet. App. 447 (2007). In that decision, the United States Court of Appeals for Veterans Claims noted that, unlike the rating schedule for hearing loss, the extra-schedular provisions did not rely exclusively on objective test results to determine whether referral for an extra-schedular rating was warranted. The Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Id. at 455.
According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular Schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular Schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available Schedular evaluations for that service-connected disability are inadequate. Second, if the Schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available Schedular evaluations for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. 
The veteran has generally complained that his hearing loss causes difficulty in his daily life by making normal conversation difficult; the same is true at work. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veterans Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295  (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is fully contemplated by the currently assigned 30 percent rating. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. Accordingly, the Board finds that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. 
 In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321 (b)(1) is not warranted.

 
WILLIAM H. DONNELLY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shauna M. Watkins, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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