Citation Nr: 0005145 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-04 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than October 7, 1987, for the grant of entitlement to a 100 percent evaluation for service-connected bilateral hearing loss, to include the issue of whether clear and unmistakable error (CUE) was shown in a rating action dated in March 1965. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran had active service from November 1942 to May 1945, November 1947 to May 1957 and May 1963 to December 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1997 RO determination from the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to an effective date earlier than September 14, 1990 for the grant of a 100 percent evaluation for service-connected bilateral hearing loss. Subsequently, in a September 1999 rating decision, the RO granted entitlement to an effective date of October 7, 1987. The Board also notes that the veteran and his representative contend that a March 1965 RO decision contained CUE. The Board will therefore also address the contentions of the veteran regarding CUE in the March 1965 RO determination. FINDINGS OF FACT 1. Service connection was initially established for bilateral hearing loss by rating action of October 1945, at which time a noncompensable evaluation was assigned. That determination was not appealed. 2. In January 1965, the veteran raised a claim of entitlement to a compensable evaluation for bilateral hearing loss. 3. A March 1965 VA audiologic examination showed average pure tone thresholds of 25 and 30 for the veteran's right and left ears, with pure tone decibel loss of 45 at frequency 2000 for each ear. 4. In a March 1965 rating action, the results of the VA audiological examination were discussed; however, the issue of entitlement to a compensable evaluation for bilateral hearing loss was never adjudicated. 5. On October 7, 1987, a VA audiologic evaluation was conducted which revealed hearing loss of such severity as to warrant a 100 percent evaluation. The RO subsequently granted a 100 percent evaluation for bilateral hearing loss effective from October 7, 1987. 6. The evidence does not show that it was factually ascertainable that an evaluation in excess of 10 percent was warranted for bilateral hearing loss prior to October 7, 1987. CONCLUSIONS OF LAW 1. With respect to the claim of entitlement to a compensable evaluation for bilateral hearing loss, the January 1965 claim remained pending due to the failure of the RO to adjudicate the claim in March 1965. The March 1965 RO rating decision was not final and therefore could not contain clear and unmistakable error, since the veteran's claim was not adjudicated in that rating action. 38 C.F.R§ 3.105(a) (1999); Norris v. West, 12 Vet. App. 413 (1999). 2. Under the rating criteria in effect at the time of the January 1965 claim and thereafter, a 10 percent evaluation is warranted for bilateral hearing loss effective from January 15, 1965 until October 6, 1987. 38 C.F.R. §§ 4.85, 4.86, 4.87; Diagnostic Code 6295 (1965). 3. An effective date earlier than October 7, 1987 for the award of a disability rating for bilateral hearing loss in excess of 10 percent is not warranted. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking an effective date earlier than October 7, 1987 for the assignment of a 100 percent disability rating for bilateral hearing loss. As part of his contentions, the veteran has presented the matter of whether there was clear and unmistakable error in a March 1965 rating decision. Factual Background As indicated ion the Introduction, the veteran had three periods of service: November 1942 to May 1945, November 1947 to May 1957 and May 1963 to December 1964. The service medical records showed that upon induction examination conducted in October 1942, bilateral hearing was 20/20. Records dated in January 1945 reflected that the veteran's hearing was 8/20 on the right side and 12/20 on the left side. A diagnosis of defective hearing probably secondary to a blast during combat was made. By rating action of October 1945, the RO granted service connection for trauma to the eighth nerve effecting the veteran's hearing bilaterally. A VA examination, including an ears, eyes, nose and throat (EENT) consultation dated in May 1946, showed that the veteran complained of impaired hearing. Hearing of 12/20 was shown bilaterally and a diagnosis of moderate otitis media was made. By rating action of June 1946, a noncompensable evaluation was assigned for moderate bilateral otitis media and for hearing loss of both ears. A medical examination conducted in November 1950 for purposes of reenlistment showed that the veteran's hearing was 15/15 bilaterally. The service medical records dated during the veteran's third period of service showed that the veteran was seen for a medical evaluation in April 1964 due to complaints of an 11 year history of hearing loss. The veteran indicated that his hearing loss had its onset in June 1953 when he sustained acoustic trauma from 155 Horwitzers. He reported that at that time he was completely deaf for a week and that he bled from both ears. Otiological examination revealed mild loss of hearing in both ears. A hearing aid was issued and it was determined that with a hearing aid, the veteran met the requirements for retention on military duty. A diagnosis of bilateral hypacusis, sensorineural, noise induced. Audiological testing revealed average pure tone level hearing in the left ear of 25 db and in the right ear of 18 db, unaided corrected to 20 db in the left ear and 15 db in the right ear. Speech discrimination in the left ear was 78 percent in the left ear and 68 percent in the right ear, unaided and was 90 percent aided. In January 1965, the veteran filed what appeared to be an original claim of entitlement to service connection for deafness in both ears, claiming that the condition had its onset in during service in 1953. On VA EENT examination conducted in February 1965, the veteran complained of deafness beginning in 1953 and indicated that he had been fitted with a hearing aid in 1964 which had been quite beneficial. It was noted that he had very poor hearing without his hearing aid and very good hearing with the aid. A diagnosis of deafness which required a hearing aid was made. On VA audiological evaluation conducted in March 1965, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 45 LEFT 10 35 45 The average pure tone thresholds were 25 for the right ear and 30 for the left ear. In a March 1965 rating decision the RO indicated that service connection had previously been granted for bilateral deafness. The RO also indicated that an ear, nose and throat (ENT) examination revealed chronic deafness and that a March 1965 audiological examination showed best hearing represented by pure tone test which reflected an average of 25 decibel hearing loss in the right ear with none higher than 45 and an average of 30 decibel loss in the left ear with none higher than 45 in the three rating frequencies. However, it appears that the RO never actually adjudicated the claim of an increased rating for bilateral hearing loss in the March 1965 rating action. The RO sent a letter to the veteran dated March 29, 1965 concerning his claim. Hearing loss was not mentioned. Subsequently, hearing loss was not evaluated upon VA examination conducted in July 1969 and hearing loss was not adjudicated in an August 1969 rating action. VA medical records showed that the veteran was hospitalized in April 1971 primarily for treatment of bronchial asthma. However, while hospitalized he was also fitted for a new hearing aid, and the discharge diagnoses included bilateral sensorineural hearing loss. In September 1990, the veteran indicated that he had recently been fitted for new hearing aids and requested consideration of a schedular evaluation for hearing loss. A VA examination was conducted in November 1990. The veteran reported that he had been exposed to loud artillery fire and gunfire when he was in Korea. It was noted that he had been wearing hearing aids for about 26 years. He complained of constant ringing in both of his ears as well as difficulty understanding conversations over background noise. On audiological evaluation in November 1990, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT XX +105 +105 +105 +105 LEFT XX 90 +105 +105 +105 The pure tone averages was +105 for the right ear and +101 for the left ear. Speech recognition of 8 percent in the right ear and 12 percent in the left ear was shown. The examiner remarked that the veteran demonstrated moderate to profound sensorineural hearing loss bilaterally, and classified his hearing loss as level XI bilaterally. By rating action of February 1991, the RO granted a 100 percent evaluation for bilateral hearing loss, effective from September 1990. The RO noted that on initial convalescent rating following the veteran's first period of active duty, service connection had been established for bilateral hearing loss due to acoustic trauma during combat. The RO also noted that the evidence was insufficient to evaluate the claim from April 1946 to September 1990. Following the February 1991 determination of the RO, the veteran submitted a statement in November 1997 arguing that an effective date of June 1971 should be assigned for the 100 percent evaluation for bilateral hearing loss. In December 1997, the RO issued correspondence to the veteran indicating that September 1990 was the properly assigned effective date. The RO explained that service connection for hearing loss was initially granted in October 1945 at which time it was assigned a noncompensable evaluation. It was noted that at the time of the veteran's discharge in 1964, hearing loss was still determined to be noncompensably disabling. The RO indicated that thereafter no request to reopen the claim was received until September 1990. VA medical records showed that in April 1995 the veteran was seen for a hearing aid checkup. Audiometric testing at that time revealed severe to profound bilateral hearing loss. He was seen again in November 1997 for a hearing aid check up at which time again revealed severe to profound bilateral hearing loss was shown and new earmolds were fitted for the veteran's hearing aids. By rating action of May 1999, the 100 percent evaluation for bilateral hearing loss was continued. Subsequently, VA medical records dated from 1971 to 1999 were obtained for the file and it was noted that the veteran had also received fee basis treatment. A record dated in June 1971 showed that a hearing aid was recommended. The veteran presented testimony at a hearing held at the RO in September 1999. The veteran's representative indicated that the effective date of the grant of a 100 percent evaluation for bilateral hearing loss should be as of January 1965. The veteran testified that he had been wearing hearing aids since 1964. At the hearing, additional evidence was submitted in the form of a VA audiological evaluation conducted in October 1987. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 90 110 115 115 LEFT 65 80 110 110 120 The pure tone averages were 91.6 for the right ear and 85 for the left ear. Speech recognition was 8 percent in the right ear and 28 percent in the left ear. The examiner indicated that the test results showed bilateral sensorineural hearing loss which was severe to profound in the right ear and moderate to profound in the left ear. It was noted that word discrimination abilities were extremely poor in both ears. By rating action/Supplemental Statement of the Case dated in September 1999, the RO granted an effective date of October 7, 1987, the date of the VA audiological examination, for the grant of a 100 percent evaluation for bilateral hearing loss. Applicable Law and Regulations Effective dates The effective date of a grant of an increased evaluation will be the date of receipt of the claim or the date entitlement arose, whichever is later. However, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred if claim is received within 1 year from such date otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). Rating criteria In March 1965, the VA Schedule for Rating Disabilities provided in part: If the results of pure tone audiometry are used, the severity of hearing loss is determined by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85, Part 4, DC 6277-6297 (1965). Evaluations of bilateral defective hearing range from noncompensable to 80 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 500, 1,000 and 2,000 Hertz (cycles per second). The Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level A, for essentially normal acuity, to Level F, for profound deafness, in order to evaluate the degree of disability from bilateral service- connected defective hearing. The evaluations derived from the schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1965). Analysis It appears that the veteran is contending that a March 1965 rating action contained clear and unmistakable error due to failure to adjudicate a claim involving hearing loss which was raised by the veteran in January 1965. As an initial matter, the record reflects, and the RO has conceded, that service connection for hearing loss was granted in 1945. Notwithstanding this prior grant of service connection, in January 1965 the veteran filed a claim of entitlement to service connection for hearing loss which he claimed started in 1953, during his second period of service. In the March 1965 rating decision, the RO correctly stated that "[s]ervice connection has previously been granted for . . . bilateral deafness . . . ." The veteran's January 1965 communication, although not phrased as such, was in effect a claim of entitlement to an increased disability rating for bilateral hearing loss. Cf. EF v. Derwinski, 1 Vet. App. 324, 326 (1991) [VA's statutory duty to assist means that VA must liberally read all documents or oral testimony submitted to include all issues presented]; Douglas v. Derwinski, 2 Vet. App. 103, 109 (1992) [VA is obligated to consider all issues reasonably inferred from the evidence of record]. In the March 1965 rating action the RO discussed the evidence of record pertaining to the veteran's bilateral hearing loss, including the EENT examination and results of the audiological examination. For reasons unexplained, the RO then failed to adjudicate the claim of entitlement to an increased rating for hearing loss. In essence, the veteran contends that therefore the 1965 rating decision contained clear and unmistakable error. The law provides that final RO decisions may reversed or amended where evidence establishes that CUE existed. See 38 C.F.R. § 3.105(a). The Board must therefore determine whether the RO's failure to adjudicate the issue of entitlement to an increased rating for hearing loss in March 1965 constitutes a final disallowance of that claim. If not, there can be no finding of clear and unmistakable error, since clear and unmistakable error applies only to a final decision. The Court has spoken on this matter, holding that where VA failed to comply during the adjudication process with certain procedural requirements mandated by law or regulation, the claim remains pending in that VA adjudication process. Norris v. West, 12 Vet. App. 413 (1999). The Court determined in the Norris case that there was no final adverse RO decision which could be subject to clear and unmistakable error, but it was held that the claim which had been reasonably raised and which was unadjudicated remained pending at the RO. The situation presented in the Norris case is essentially the same as that which is presented in this case. Accordingly, in this case, there can be no basis for an attack on the basis of alleged clear and unmistakable error in the March 1965 rating action, since no final decision was made therein pertaining to the hearing loss disability. See Link v. West, 12 Vet. App. 39, 45 (1998). However, as in the Norris case, since the RO failed to adjudicate a claim for hearing loss in March 1965 after it had been formally raised by the veteran in January 1965, that claim remained pending at the RO. The question which remains is the level of disability to assigned for bilateral hearing loss, effective from January 15, 1965, the date of the pending increased rating claim. Thus, the Board must determine the level of disability to be assigned, based on the evidence of record. This evidence consists of the VA EENT and audiological examinations which were completed in early 1965. As explained elsewhere in this decision, there are no other relevant records pertaining to the level of the veteran's hearing loss until 1987. Upon VA examination conducted in March 1965, audiological testing revealed an average of 25 decibel loss in the right ear with none higher than 45 decibels in the 500, 100, and 2000 hertz frequencies, and an average of a 30 decibel loss in the left ear with none higher than 45 decibels in the three rating frequencies. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the alphabetic designations assigned after audiometric evaluations are rendered. 38 C.F.R. § 4.87, Table II (1965). Upon applying the rating criteria to the examination findings, both the better ear (right) and the poorer ear (left) are designated as level B. When both the better and poorer ear are designated as level B, a 10 percent evaluation is warranted. Accordingly, pursuant to 38 C.F.R. § 4.87a, Diagnostic Code 6295, a 10 percent evaluation is warranted effective from the date of the pending claim for an increased evaluation, which was filed on January 15, 1965. After March 1965, there was no evidence presented upon which an evaluation in excess of 10 percent could be granted until the VA audiological evaluation in October 1987. The evidence pertaining to bilateral hearing loss dated from subsequent to the March 1965 VA examination until the October 1987 VA examination included a 1971 record indicating that a hearing aid was recommended for the veteran. However, that evidence is insufficient to establish that an evaluation in excess of 10 percent was warranted for rating purposes. Moreover, there was no other evidence presented or dated during that time which established that an evaluation in excess of 10 percent should be assigned at any time between January 1965 and October 1987. Accordingly, the Board has determined that a 10 percent evaluation is granted for bilateral hearing loss effective from January 15, 1965 until October 6, 1987, and the appeal is granted to that extent. With respect to the issue of entitlement to an effective date prior to October 7, 1987 for the grant of a 100 percent evaluation for bilateral hearing loss, VA medical records include an October 1987 audiological evaluation which demonstrated that the veteran's hearing loss was of such severity to warrant a 100 percent evaluation. The RO assigned a 100 percent evaluation for bilateral hearing loss effective from October 7, 1987, the date of the VA evaluation. The veteran has argued that an effective date of 1965 or 1971 should be assigned for the grant of a 100 evaluation. As discussed previously, the March 1965 evidence did reflect hearing loss, but such hearing loss was consistent with a 10 percent evaluation and no higher. The evidence also reflects that in 1971 the veteran was seen due to his hearing loss and that time a hearing aid was recommended. This 1971 evidence did not reflect that the rating criteria required for the assignment of a higher disability rating; there was evidently no audiological testing done at that time. The veteran's representative contends that the provisions of 38 C.F.R. § 3.157(a) warrant the grant of an effective date for the assignment of a 100 percent evaluation for bilateral hearing loss one year prior to October 7, 1987. However, that provision is inapplicable to this claim. That provision is applicable to claims in which compensation is awarded or increased pursuant to a liberalizing law. Such is not the case here. In this case, the increased evaluation was not awarded pursuant to a liberalizing law and therefore the dual provisions of 38 C.F.R. § 3.157(a) and 38 C.F.R. § 3.114 are inapplicable and fail to provide a basis for the assignment of an effective date prior to October 7, 1987. The operative provision in this case is 38 C.F.R. § 3.400(o), which states that the effective date of an increased rating is the date on which it was factually ascertainable that an increase in disability occurred. In summary, following a review of the evidence the Board has found that there was no evidence presented or dated between January 1965 and October 6, 1987 indicates that that an evaluation in excess of 10 percent was warranted during that time. Accordingly, the earliest possible effective date has been granted for the assignment of a 100 percent evaluation for bilateral hearing loss, namely October 7, 1987, the date of the VA examination at which it was ascertained that there was hearing loss consistent with the assignment of a 100 percent rating, . ORDER A 10 percent evaluation for bilateral hearing loss is warranted effective from January 15, 1965 until October 6, 1987. An effective date prior to October 7, 1987 for the grant of a 100 percent evaluation for bilateral hearing loss is denied. Barry F. Bohan Member, Board of Veterans' Appeals The veteran does not contend, and the record does not demonstrate, that he filed a claim of entitlement for an increased rating earlier than January 1965. As noted above, the veteran evidently was not even aware that service connection was in effect for bilateral hearing loss.