Citation Nr: 18160599
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-24 959
DATE:	December 27, 2018
ORDER
Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is denied.
Entitlement to an effective date earlier than March 1, 2015 for service connection of bilateral hearing loss is denied.
FINDINGS OF FACT
1. Throughout the appeal period, the Veteran’s hearing loss was manifested by hearing levels of no worse than Level II in the right ear and Level XI in the left ear.  
2. Service connection was previously denied for bilateral hearing loss, by a May 1984 rating decision.  The Veteran was informed of this decision, including his right to appeal, and did not appeal within 1 year of the decision.
3. Following the May 1984 rating decision, no claim of service connection for hearing loss was submitted to VA prior to March 1, 2015.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 10 percent for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100.
2.  The criteria for an effective date earlier than March 1, 2015 for a grant of service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Air Force from October 1961 to August 1962. 
Increased Rating 
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R § 4.7.  Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  
The Veteran’s bilateral hearing loss is currently rated as 10 percent disabling under Diagnostic Code 6100 for Hearing Impairment. 
Under Diagnostic Code 6100, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made.  Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992).  To evaluate the degree of disability from service-connected defective hearing, the rating 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, Diagnostic Code 6100.
Further, additional considerations apply when exceptional patterns of hearing impairment are demonstrated.  Exceptional patterns of hearing impairment occur when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  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.  38 C.F.R. § 4.86(a).  Also, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be considered separately.  38 C.F.R. § 4.86(b).
In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report.  The Court noted, however, that, even if an audiologist’s description of the functional effects of a veteran’s hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Id.
In October 2015, the Veteran received a VA examination.  the Veteran’s audiological evaluation, with pure tone thresholds, in decibels, were as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	10	20	20	30	40
LEFT	105+	105+	105+	105+	105+

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and results were unavailable for the left ear.  The average pure tone threshold in decibels for the right ear was 28 and 105 for the left ear.  Regarding functional impact, the Veteran reported that he has difficulty hearing where sound is coming from.
In April 2017, the Veteran received another VA examination.  On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	20	20	25	40	45
LEFT	105+	105+	105+	105+	105+

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and were again unbailable for the left ear.  The average pure tone threshold in decibels for the right ear was 33 and 105 for the left ear.  Regarding functional impact, the Veteran reported that he experiences more difficulty in hearing, even with hearing aid present.  He further stated that his wife was disabled and feared not hearing if she called him.  
The Board notes that the examinations showed an exceptional pattern of hearing loss in his left ear, and thus, Table VIA can be applied for the left ear only. Due to the right ear not showing exceptional hearing loss, Table VI applies for the right ear.  
For the October 2015 examination, in applying the results of Table VI and Table VIA, where the right ear (better ear) is Roman Numeral II, and the left ear (poorer ear) is Roman Numeral XI, the appropriate rating is 10 percent under Diagnostic Code 6100.  For the April 2017 examination, under Table VI where the right ear (better ear) is Roman Numeral I, and the left ear (poorer ear) under Table VIA is Roman Numeral XI, the appropriate rating is still 10 percent under the Diagnostic Code. 
The Board also notes that the medical evidence of record does not show any other testing that provides pure tone threshold decibel averages and speech recognition percentages. 
Therefore, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).  Accordingly, a rating in excess of 10 percent for bilateral hearing loss is not warranted. 
Earlier Effective Date
The Veteran contends that his grant of service connection for bilateral hearing loss should be provided an earlier effective date of November 30, 1983, the date he first filed his claim. 
The effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service.  Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later.  The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
Here, the Veteran’s claim for service connection was previously denied in a May 1984 rating decision.  The Veteran was informed of this decision but did not appeal it, nor did he submit new and material evidence within one year of the decision.  See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the denial of the claim became final.  See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103.
The Board notes that there was no further correspondence regarding the Veteran’s claim for bilateral hearing loss until March 1, 2015, the date he filed his claim to reopen service connection for hearing loss.  The Veteran also did not submit any new evidence, to include medical records, until after March 1, 2015. 
Therefore, the Board finds that entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss is not warranted.  The Veteran did not timely appeal the May 1981 rating decision and did not notify the Board of his request to reopen the claim until March 1, 2015.  Thus, the appeal for earlier effective date for grant of service connection for bilateral hearing must be denied.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Reasonable doubt is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
Shamil Patel
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Negron, Associate 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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.